Irresistible Impulse as a Defense in the Criminal Law

[Vol. 100

IRRESISTIBLE IMPULSE AS A DEFENSE INTHE CRIMINAL LAW

By EDWIN R. KEEDY t

I

One of the most controversial questions in the field of CriminalLaw is whether an irresistible impulse, produced by mental disease,should be a defense to a charge of crime. Statutes, court decisionsand the opinions of writers are in direct conflict. The authors of tworather recent publications in England discuss the problem. EdwardRobinson in a volume entitled Just Murder presents legal and medicalarguments in favor of an affirmative answer to the question.' The con-trary position is taken by G. Ellenbogen in an article in the Journal ofCriminal Science, published at Cambridge University.2 In the in-vestigation conducted during the years 1949 and 1950 by the RoyalCommission on Capital Punishment testimony was received from mem-bers of the medical and legal professions on the question whether ir-resistible impulse should be allowed as a defense.3 The purpose ofthis article is to present a statement of the law on the subject and toevaluate the reasons that have been advanced for and against allowingthe defense.

In 1838 Dr. Isaac Ray, a distinguished physician, published inBoston a treatise on the Medical Jurisprudence of Insanity. In dis-cussing the criminal responsibility of the insane he stated the follow-

t A. B., 1899, Franklin and Marshall College; LL. B., 1906, Harvard University;LL. D., 1926, Franklin and Marshall College, 1950, University of Pennsylvania;Professor of Law Emeritus, University of Pennsylvania; Dean, University of Penn-sylvania Law School 1940-1945; author of The Decline of Traditionalism and In-dividualism, 65 U. OF PA. L. REv. 764 (1917); The Third Degree and Legal I*-terrogdtion of Suspects, 85 U. OF PA. L. Ray. 761 (1937); A Petition of Right:Archer-Shee v. The King, 87 U. OF PA. L. Ray. 895 (1939) ; The Preliminary In-vestigation of Crime in France, 88 U. OF PA. L. Rav. 385, 692, 915 (1940) ; Historyof the Pennsylvania Statute Creating Degrees of Murder, 97 U. OF PA. L. REv. 759(1949) ; George Sharswood-Professor of Law, 98 U. OF PA. L. REv. 685 (1950) ;A Problem of First Degree Murder: Fisher v. United States, 99 U. OF PA. L. REv.267 (1950) ; A Remarkable Murder Trial: Rex v. Sinnisiak, 100 U. OF PA. L. REv.48 (1951); and articles in other legal periodicals.

1. RoniNsox, JUST MURDER (1947).2. Ellenbogen, The Principles of the Criminal Law Relating to Insanity, 1 J.

CRim. Sci. 178 (1948).3. The scope of the Commission's investigation is not limited to the problem of

capital punishment, but includes a study of the tests for determining criminal re-sponsibility when mental disease is set up as a defense to a criminal prosecution.When the Commission conducted hearings in this country in 1951, much stress waslaid on this question. The report of the Commission has not yet been published.

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IRRESISTIBLE IMPULSE IN CRIMINAL LAW

ing: "Now we have an immense mass of cases related by men of un-questionable competence and veracity, where people are irresistiblyimpelled to the commission of criminal acts while fully conscious oftheir nature and consequences; and the force of these facts must be over-come by something more than angry declamation against visionarytheories and ill-judged humanity." 4

In February, 1843 Dr. Forbes Winslow published in London avolume entitled The Plea of Insanity in Criminal Cases, in which hestated the following:

"A person may be perfectly competent to draw a correct dis-tinction between right and wrong, and yet labour under a formof insanity which ought unquestionably to protect him from legalor moral responsibility. I allude to cases of insanity where thepatient is driven, by an irresistible impulse, to destroy, afterstruggling, for some time, against the morbid desire, being, atthe same time, perfectly conscious that he is impelled to do whatis wrong both in the sight of God and man." 5

The instructions to the jury in four trials, two in England andtwo in this country, which occurred between the years 1840 and 1846,are of particular significance in the development of the present problem.In 1840 Oxford was tried for treason for firing a pistol at QueenVictoria. The defense was insanity. In his charge to the jury LordDenman, C. J. stated the following:

"The very important question comes, whether the prisonerwas of unsound mind at the time when the act was done? . . .If some controlling disease was, in truth, the acting power withinhim which he could not resist, then he will not be responsible."6

The defendant was acquitted. "

4. RAY, THE MEDICAL JURISPRUDENCE OF INSANITY 263 (1838).5. WINsLow, THE PLEA OF INSANITY IN CRImINAL CASES 74 (1843)."Sometimes his [the monomaniac's] conscience makes him turn with horror from

the act which he is about to commit; but his will is overcome by the violence of hisimpulse." 2 MARc, DE A FoLiE 25 (1840).

"In this disorder [instinctive madness] the will is occasionally under the influenceof an impulse, which suddenly drives the person affected to the perpetration of actsof the most revolting kind, to the commission of which he has no motive. The impulseis accompanied by consciousness; but it is in some instances irresistible. .. ."PRICHARD, ON THE DIFFERENT FoRms OF INSANITY IN RELATION TO JURISPRUDENCE87 (1842).

6. Reg. v. Oxford, 9 C. & P. 525, 546 (1840). The context in which the quotedstatement appears is as follows: "Then the very important question comes, whetherthe prisoner was of unsound mind at the time the act was done? Persons prima faciemust be taken to be of sound mind till the contrary is shewn. But a person maycommit a criminal act, and yet not be responsible. If some controlling disease was,in truth, the acting power within him which he could not resist, then he will not beresponsible."

Professor Glueck in his discussion of Reg. v. Oxford states the following: "Inthis case the jury found the prisoner not guilty, being evidently more impressed with

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958 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 100

In 1843 M'Naughton was brought to trial for the murder ofEdward Drummond, the private secretary of the Prime Minister, SirRobert Peel.7 The evidence showed that the defendant was sufferingfrom an insane delusion that he was being persecuted by the PrimeMinister and other members of his political party. At the conclusionof the evidence the Solicitor-General, who conducted the prosecution,stated that the object was to ascertain "whether at the time the prisonercommitted the crime he was at that time to be regarded as a responsibleagent, or whether all control of himself was taken away ?" s Tindal,C. J. who with Williams and Coleridge, JJ. presided at the trial,submitted to the jury the question "whether on the whole of the evi-dence you have heard, you are satisfied that at the time the act wascommitted, for the commission of which the prisoner now standscharged, he had that competent use of his understanding as that heknew that he was doing, by the very act itself, a wicked and wrongthing." The Chief Justice further stated that "If he was not sensibleat the time he committed that act, that it was a violation of the lawof God or of man, undoubtedly he was not responsible for that act,or liable to any punishment whatever flowing from that act." 9 Noreference was made to the Solicitor General's test of capacity to controlhis act. The jury found the defendant "not guilty, on the ground ofinsanity."

In 1844 Abner Rogers was tried in Massachusetts for murder."The defense was insanity. Chief Justice Shaw of the Supreme Court,who presided at the trial, presented to the jury many tests 1 for de-termining the responsibility of the defendant. One of these tests wasthe following:

the general statements of the Justice as to 'controlling disease . . . which he couldnot resist,' than with his more specific remarks about the knowledge of right andwrong." GLIUECx, MENTAL DISORDERS AND THE CRIMINAL LAW 153 (1925).

7. The Queen v. M'Naughton, 4 St. Tr. (N.S.) 847 (1843). Counsel for thedefense in his address to the jury before calling his witnesses quoted several state-ments from Dr. Ray's treatise, which he described as "perhaps the most scientifictreatise that the age has produced upon the subject of insanity in relation to juris-prudence." Id. at 878.

8. Id. at 924.9. Id. at 925.10. Com. v. Rogers, 7 Metc. 500 (Mass. 1844).In State v. Thompson, Wright's Ohio Rep. 617, 622 (1834), the trial judge

charged the jury that "if his mind was such, that he retained the power of discrimi-nating, or to leave him conscious he was doing wrong, a state of mind in which atthe time of the deed he was free to forbear, or to do the act, he is responsible as asane man."

In Clark v. State, 12 Ohio Rep. 483 (1843), the trial judge put to the jury thequestion: "Was the accused a free agent in forming the purpose to kill Cyrus Sells?"Id. at 494 n.

11. For a discussion of these tests see Keedy, Insanity and Criminal Responsibility,30 HARV. L. Rav. 535, 725-729 (1917).


"If then it is proved, to the satisfaction of the jury, that themind of the accused was in a diseased and unsound state, the ques-tion will be, whether the disease existed to so high a degree, thatfor the time being it overwhelmed the reason, conscience andjudgment, and whether the prisoner in committing the homicide,acted from an irresistible and uncontrollable impulse: If so, thenthe act was not the act of a voluntary agent, but the involuntaryact of the body, without the concurrence of a mind directing it." 12

It will be noted that "irresistible impulse" is combined with over-whelming of the "reason, conscience and judgment." The verdict ofthe jury was "not guilty, by reason of insanity."

In 1846 Charles Mosler was tried in the Court of Oyer and Ter-miner of Philadelphia County, Pennsylvania, for first degree murderin the killing of his wife.' Chief Justice Gibson of the Supreme Court,with two other Justices, presided at the trial. The defense was in-sanity. The Chief Justice in charging the jury stated inter alia thefollowing:

"But there is a moral or homicidal insanity, consisting of anirresistible inclination to kill, or to commit some other particularoffence. There may be an unseen ligament pressing on the mind,drawing it to consequences which it sees, but cannot avoid, andplacing it under a coercion, which, while its results are clearlyperceived, is incapable of resistance." 14

The trial of M'Naughton acquired particular prominence becausethe "verdict, and the question of the nature and extent of the unsound-ness of mind which would excuse the commission of a felony of thissort, having been made the subject of debate in the House of Lordsit was determined to take the opinion of the Judges on the law govern-ing such cases." 11 The Judges were Tindal, C. J. and Coltman,

12. Com. v. Rogers, 7 Metc. 500, 502 (Mass. 1844).13. Com. v. Mosler, 4 Pa. 264 (1846).14. Id. at 267. The Chief Justice qualified the quoted statement as follows:

"The doctrine which acknowledges this mania is dangerous in its relations, and can berecognized only in the clearest cases. It ought to be shown to have been habitual, orat least to have evinced itself in more than a single instance. It is seldom directedagainst a particular individual; but that it may be so, is proved by the case of theyoung woman who was deluded by an irresistible impulse to destroy her child, thoughaware of the heinous nature of the act. The frequency of this constitutional malady isfortunately small, and it is better to confine it within the strictest limits. If jurieswere to allow it as a general motive, operating in cases of this character, its recog-nition would destroy social order as well as personal safety. To establish it as a justi-fication in any particular case, it is necessary either to show, by clear proofs, its con-temporaneous existence evinced by present circumstances, or the existence of an habitualtendency developed in previous cases, becoming in itself a second nature." Ibid.

15. M'Naghten's Case, 10 Cl. & Fin. 200, 202 (1843). Note that the name of thedefendant was spelled "M'Naughton" in the report of the trial in 4 St. Tr. (N.S.)847 (1843).

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Erskine, Maule and Cresswell, JJ. of the Court of Common Pleas;Lord Denman, C. J. and Patteson, Williams, Coleridge and Wightman,JJ. of the Court of Queen's Bench, and Lord Abinger, C. B. andParke, Alderson, Gurney and Rolfe, BB. of the Court of Exchequer.

The Lords presented five questions to the Judges, all of whomwith the exception of Maule, J."6 joined in answering them. Two ofthe questions with the answers thereto are of importance in the presentdiscussion. They were as follows:

"Your Lordships are pleased to inquire of us, secondly, 'Whatare the proper questions to be submitted to the jury, where aperson alleged to be afflicted with insane delusion respecting oneor more particular subjects or persons, is charged with the com-mission of a crime (murder, for example) and insanity is setup as a defence?' And, thirdly, 'In what terms ought the ques-tion to be left to the jury as to the prisoner's state of mind at thetime when the act was committed?' And as these two questionsappear to us more conveniently answered together, we have tosubmit our opinion to be, that the jurors ought to be told in allcases . . . that to establish a defence on the ground of insanityit must be clearly proved that, at the time of the committing ofthe act, the party accused was labouring under such a defect ofreason, from disease of the mind, as not to know the nature andquality of the act he was doing; or if he did know it, that he didnot know he was doing what was wrong." 17

It is important to note two things with regard to this answer ofthe Judges, (1) that the questions of the Lords were specifically limitedto the case of a person "afflicted with an insane delusion" is as wasM'Naughton and (2) that the test announced by the Judges was thesame as that given to the jury by Tindal, C. J. in the trial of M'Naugh-

16. Maule, J. was of the opinion that the Judges should have declined to answerthe questions of the Lords for the following reasons: (1) "They do not appear to ariseout of and are not put with reference to a particular case"; (2) there was no argumenton the subject of the questions; and (3) as the questions related to matters of criminallaw of great importance and frequent occurrence "the answers to them by the Judgesmay embarrass the administration of justice, when they are cited in criminal trials."Id. at 204.

17. Id. at 209. The answers of the Judges to the questions of the Lords were givenby Tindal, C. J.

18. Alexander J. E. Cockburn, who was counsel for M'Naughton, after becomingChief Justice of the Court of Common Pleas expressed the opinion that the answersof the judges "embodied only so much of the law as sufficed to answer the specificquestions that had been submitted" to them. OPPENHEIMER, THEE CRIMINAL RE-sPoNSIBILiTY oF LUNIATICs 26 (1909). Oppenheimer states that the opinion of Cock-burn "cannot for a minute be sustained," and further states that the answers "mustbe taken to be a complete declaration of the whole law in 1843." Ibid.

"Surely the judges must not be presumed to have answered a question they werenever asked." MERCIER, CRIMINAL RESPONsImILIT 177 (1905).

"The effect of insanity on the will could not arise on the Questions put to thejudges, for such a question was not asked; the Questions refer to 'insane delusion.'"Barnes, A Century of the McNaghten Rides, 8 CAMR. L.J. 300, 310 (1944).


ton. It is a reasonable conclusion that if, following the Oxford case,the Lords had asked the Judges to state the test when insanity is setup as a defence they would have responded in the language employedby Lord Denman to the jury in that case, which, as already stated, wasas follows: "If some controlling disease was, in truth, the acting powerwithin him which he could not resist, then he will not be responsible."It is not likely that Lord Denman, who joined in the answers of theJudges to the questions of the Lords, would have done so if he hadbelieved the answers related to any problem of mental disease otherthan "insane delusion."

II

Following the publication of the answers of the Judges to thequestions of the Lords, based on the acquittal of M'Naughton, Englishtrial judges in charging juries generally employed the test of "knowl-edge of right and wrong" 19 and, when the question arose, declaredthat irresistible impulse was not a defense.2" Writers on the CriminalLaw also stated that the law was as announced by the Judges.21 How-ever, some physicians maintained that irresistible irmpulse, when theproduct of mental disease, should be a defense. The most influentialof these was Dr. Henry Maudsley, Professor of Medical Jurisprudencein the University College, London. Writing in 1874 he stated "itis a fact that in a certain state of mental disease a morbid impulse maytake such despotic possession of the patient as to drive him, in spiteof reason and against his will, to a desperate act of suicide or homi-

19. Reg. v. Higginson, 1 C. & K. 129 (1843); Reg. v. Vaughan, 1 Cox C.C. 20(1844) ; Reg. v. Layton, 4 Cox C.C. 149 (1849) ; Reg. v. Davies, 1 F. & F. 69 (1858) ;Reg. v. Richards, 1 F. & F. 87 (1858); Reg. v. Law, 2 F. & F. 836 (1862); Reg. v.Leigh, 4 F. & F. 915 (1866).

20. Reg. v. Barton, 3 Cox C.C. 275 (1848) ; Reg. v. Stokes, 3 C. & K. 185 (1848);Reg. v. Haynes, 1 F. & F. 666 (1859) ; Reg. v. Brough, 2 F. & F. 838n. (1862). Thetrial occurred in 1854.

In Reg. v. Stokes the charge of Rolfe, B. to the jury was in part as follows:"Every man is held responsible for his acts by the law of this country, if he can discernright from wrong. This subject was, a few years ago, carefully considered by all thejudges, and the law is clear upon the subject. It is true that learned speculators, intheir writings, have laid it down that men, with a consciousness that they were doingwrong, were irresistibly impelled to commit some unlawful act. But who enabled themto dive into the human heart, and see the real motive that prompted the commissionof such deeds?" 3 C. & K. at 188.

In Regina v. Haynes a portion of the charge of Bramwell, B. to the jury was asfollows: "But if an influence be so powerful as to be termed irresistible, so much themore reason is there why we should not withdraw any of the safeguards tending tocounteract it. There are three powerful restraints existing, all tending to the assistanceof the person who is suffering under such an influence-the restraint of religion, the re-straint of conscience, and the restraint of law. But if the influence itself be held a legalexcuse, rendering the crime dispunishable, you at once withdraw a most powerful re-straint-that forbidding and punishing its perpetration." 1 F. & F. at 667.

21. AcHioLD, PL.EADING AND EVIDENCE IN CRIMINAL CASES 15 (13th ed. 1859);RussEL, CRIMES AND MISDEMEANORS 19 (4th ed. 1865).

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cide." 22 James Fitzjames Stephen, the most learned writer on theCriminal Law of England during the nineteenth century, publishedin 1883 his treatise on this subject.2" He contended that irresistibleimpulse should be a defense 2 4 and expressed the opinion that a personwho acts under such an impulse does not know the nature of his act.2

5

In a number of reported cases during the present century the trialjudge charged the jury that the defendant was not responsible if hewas unable to control his action, even if he knew that it was wrong. 6

The most important of these was the case of Ronald True, who wastried for murder in 1922. The trial judge told the jury that theyshould not convict him "even if the prisoner knew the physical natureof his act, and knew that it was morally wrong and punishable bylaw, and yet was from mental disease deprived of the power of con-trolling his actions at the time." 27 The defendant, however, wasconvicted, and his appeal to the Court of Criminal Appeal was dis-missed. Shortly thereafter he was "certified insane." The trial andthe subsequent proceedings aroused popular interest such as followedthe acquittal of M'Naughton.28 As a result Lord Birkenhead, the

22. MAUDSLEY, RESPONSIBILITY IN MENTAL DISEASE 143 (1874).23. STEPHEN, HISTORY OF THE CRIMINAL LAW OF ENGLAND (1883).24. "The proposition, then, which I have to maintain and explain is that, if it is

not, it ought to be the law of England that no act is a crime if the person who doesit is at the time when it is done prevented either by defective mental power or byany disease affecting his mind from controlling his own conduct, unless the absenceof the power of control has been produced by his own default." 2 Id. at 168.

25. Id. at 171.26. Rex v. Hay, 22 Cox C.C. 268 (1911) ; Rex v. Fryer, 24 Cox C.C. 403 (1915);

Rex v. Jolly, 83 Just. P. 296 (1919) ; Appeal of True, 16 Cr. App. R. 164 (1922). InRex v. Hay the medical officer of Brixton Prison testified that the defendant, who wascharged with feloniously shooting at" the prosecuting witness with intent to murderhim, "knew that he was firing a revolver and that it was wrong to do so, but thatowing to disease of the mind he was unable to control the homicidal impulse whichdominated him." Darling J. directed the jury that "if they believed the evidence ofDr. Dyer they would be justified in finding the prisoner guilty of the act charged, butinsane at the time of committing it so as not to be responsible according to law." 22Cox C.C. at 269.

To the same effect are Reg. v. Cockroft (1865), cited in TAYLOR, MEDICAL JURIS-PRUDENcE 761 (12th Am. ed. 1897) ; Reg. v. Jordan (1870), Reg. v. Gill (1883) and-Reg. v. Hay (1911), cited in SULLIVAN, CRIME AND INSANITY 231 (1924).

In March, 1943, a young man, Lees-Smith, was tried at the Central CriminalCourt, London, for the murder of his mother. The medical testimony was to the effectthat, though he knew what he was doing at the time of the killing, he was unable tocontrol the impulse to kill. Although the trial judge in charging the jury employedonly the "knowledge of right and wrong test" of the M'Naghten Rules, the jury re-fused to convict the defendant. Following is an extract from an editorial in the LawTinws: "THis will not be the first time that juries have refused to find a verdict inaccordance with the rules. If, however, this precedent is followed and scientific evidenceis admitted in future trials that a prisoner, while knowing the quality of his act, is un-able to control his actions, the rules will, it seems, have to be extended to include withinthe defence of insanity uncontrollable impulse." 195 L.T. 115 (1943).

27. 16 Cr. App. R. 164, 169 (1922).28. GooDwIN, INSANITY AND THE CRIMINAL 270 (1924); SULLIVAN, CRIME AND

INSANITY 231 (1924).


Lord Chancellor, appointed a Commission composed of distinguishedlawyers and judges,29 who had had extensive experience in the ad-ministration of the Criminal Law. Lord Justice Atkin was chairmanof the Commission, which was directed "to consider what changes, ifany, are desirable in the existing law, practice and procedure relatingto criminal trials in which the plea of insanity as a defence is raised."

The British Medical Association presented to the Commission arecommendation that the existing law be retained with "a modifica-tion as to lack of control." "o After careful consideration of this rec-ommendation the Commission reported that "It was established to oursatisfaction that there are cases of mental disorder where the impulseto do a criminal act recurs with increasing force until it is, in fact,uncontrollable." 31 The Commission accordingly made the followingrecommendation:

"It should be recognized that a person charged criminallywith an offence is irresponsible for his act when the act is com-mitted under an impulse which the prisoner was by mental diseasein substance deprived of any power to resist. It may require legis-lation to bring this rule into effect." 32

The Government having declined to proceed on the recommenda-tion of the Commission, Lord Darling introduced in the House ofLords a bill embodying the recommendation.3 3 The bill was, how-ever, rejected after Lord Sumner, Lord Hewart (the Lord ChiefJustice), Viscount Haldane (the Lord Chancellor), Lord Dunedinand Viscount Cave spoke in opposition to it.

Lord Sumner said that he would accept the opinion of the medicalmen,- who came before the Commission, that there are cases wherethere exists an uncontrollable impulse due to disease of the mind.34

29. The members of the Commission were Lord Justice Atkin (Chairman), SirErnest Pollock, Sir Leslie Scott, Sir Herbert Stephen, Bart., Sir Richard Muir, SirArchibold Bodkin, Sir Edward Troup, Sir Ernley Blackwell and Sir EdwardMarshall-Hall. REP. COMM. ON INSANITY AND CRIME, CmD. No. 2005, 2 (1923).

30. Id. at 4. The Medico-Psychological Association presented to the Commis-sion the following recommendation: "The legal criteria of responsibility expressedin the rules in McNaghten's case should be abrogated and the responsibility of aperson should be left as a question of fact to be determined by the jury on the meritsof the particular case." Ibid. The Commission did not approve this recommendation.

31. Id. at 8. The Commission further stated the following: "The suggested rulepostulates mental disease; and we think it should be made clear that the law doesrecognize irresponsibility on the ground of insanity where the act was committed un-der an impulse which the prisoner was, by mental disease, in substance deprived ofany power to resist." Ibid.

32. Id. at 21. Other proposals for legislative change of the existing law re-garding insanity as a defense are set forth in Davies, Irresistible Inpulses in. EnglishLaw, 17 CAN. B. REv. 147 (1939).

33. 57 H.L. DEB. 443 (5th ser. 1924).34. Id. at 457.

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He stated, however, that he was convinced there were not many such,cases and that no injustice had resulted from the application of theexisting law, while on the other hand grave results would follow ifthe proposed bill became law.3 5

Lord Hewart stated that the Court of Criminal Appeal had "ex-pressly repudiated" the doctrine of uncontrollable impulse.3 With re-gard to the proposal of Lord Darling's bill he stated that he had con-sulted twelve of the judges of the King's Bench Division, who arealso judges of the Court of Criminal Appeal, and that "ten are, likemyself, emphatically opposed to this measure, one is emphatically infavor of it and one is doubtful." " He added that if the proposal ofthe Commission was adopted "it would be impossible to distinguishbetween the impulse of the person said to be suffering from mentaldisease, and the impulse of the ordinary offender who is moved to com-mit a crime by the desire for gain or revenge." 38

Viscount Haldane expressed the opinion that while the proposalwas "abstractly right" it would put too much burden on the jurors.3

He then stated the following: "Let your Lordships dismiss from yourminds the fear that anybody who has acted under an uncontrollableimpulse, which he can not resist when he commits the crime, is likelyto be hanged." 40 Lord Dunedin said that the passage of the bill"would open the door to subterfuge and impede the proper carryingout of the criminal law." 41 Viscount Cave stated that "Where thereis a compelling impulse of that kind it is always taken into accounteither by the Judge at the trial or, in the event of conviction, by theSecretary of State when he comes to consider the sentence." 42 Healso said that if the bill became law it "will make irresistible an im-pulse which now is resistible and resisted because of the penal law." "

It will be noted that three of the Lords, Sumner, Haldane andCave, who spoke in opposition to the bill, recognized the existence insome cases of an irresistible impulse, the product of mental disease,notwithstanding the fact that the Court of Criminal Appeal, as statedby Lord Hewart, repudiated the doctrine of irresistible impulse.44 The

35. Id. at 459.36. Id. at 467.37. Id. at 465.38. Id. at 468.39. Id. at 471.40. Id. at 472.41. Id. at 475.42. Id. at 476.43. Ibid.44. Id. at 467. See Hewart, L.C.J. in Appeal of True, 16 Cr. App. R. 164, 170

(1922).


practice has frequently not been in accordance with this holding. Judgesin their instructions to the jury have sometimes stated that it is adefense, and in many cases, where the trial judge has charged that thedefendant is responsible unless he met the test of not knowing rightfrom wrong, the jury has refused to convict. This statement is sup-ported by convincing authority.

Lord Justice Atkin, the Chairman of Lord Birkenhead's Com-mission, stated the following: "In practice, the judge, the counsel, thejury, the witnesses and all concerned were desirous, in cases of uncon-trollable impulse, to acquit the accused on the ground of insanity." "

Lord Chancellor Haldane in discussing Lord Darling's bill stated:"I have never heard of these Rules [M'Naghten's Case] embarrassingany Judge who really had a case before him in which justice requiredan acquittal, or preventing him from giving such direction to a juryas would enable them to apply these Rules in cases where they oughtto be applied, in cases, for instance, where the impulse was so dominantas to deprive a person of freedom or of any realization of what he wasdoing." 41

G. Ellenbogen, who, as stated at the beginning of this article,contends that irresistible impulse should not affect criminal respon-sibility, states that "It must be admitted that because the Crown cannot appeal from an acquittal (and that is the effect of the verdict'guilty, but insane') a vast number of cases-as is evident from thenewspaper reports-are disposed of far more leniently than a strictapplication of the Macnaghten rules could possibly permit." 47

The author of a carefully considered article in the Cambridge LawJournal made the following statement:

"This dislike [of the existing law] now appears to havespread to juries, judging by the verdicts of guilty but insane, re-turned at the Central Criminal Court in 1936 and 1943, in theface of the McNaghten Rules. If juries persist in recognizingthe defence of irresistible impulse, the legislature or the Courtsmay be forced through pressure of public opinion to recognize it aswell." 48

A learned legal writer, the Principal of Brasenose College, Ox-ford, has presented the following statistical information:

45. Atkin, LJ. Insanity as a Defence in Murder Cases, 159 L.T. 435, 436 (1925).46. 57 H.L. DE. 474 (5th ser. 1924).47. Ellenbogen, The Principles of the Criminal Law Relating to Insanity, 1 J.

CaIm. Scr. 178, 190 (1948). Permission to include this quotation was granted bythe editors.

48. Barnes, A Century of the McNaghten Rules, 8 CAMB. L.J. 300, 321 (1944).Permission to include this quotation was granted by the author and the editor.

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"Statistics show that between 1901 and 1922 of 1445 personssent to trial for murder 485 or about 34 per cent. were found in-sane. No one can suppose that the 485 satisfied the tests imposedby the rules in M'Naghten's Case." "

Other authorities are set forth in the footnotes.50

It may, therefore, be concluded that while irresistible impulse, ab-stractly considered, is not a part of the English criminal law, inpractice it frequently constitutes a defense.

In Scotland, around the middle of the nineteenth century, thetrial judges in charging the jury ordinarily laid down the "knowledgeof right and wrong" test."' However, in 1855 Lord Justice ClerkHope told a jury that "men of common sense, and acquainted withthe ordinary actions of mankind, not taking up any particular viewson insanity whatever, but acting upon the dictates of their good sense,are far better judges than either medical men or lawyers as to thatstate of mind which should exempt a marl from liability for a criminalact." "2 In 1874 Lord Justice Clerk Moncrief stated to a jury the fol-lowing:

"A man may be entirely insane, and yet may know wellenough that an act which he does is forbidden by law. Probablya large proportion of those who occupy our asylums are in thatposition. It is not a question of knowledge, but of soundness ofmind." 11

Even more significant is a portion of the charge given to a jury byLord Justice General Dunedin in 1907, which was as follows:

49. Stallybrass, A Coinparlsn of the Gewral Principles of Criminol Law in4England with the "Progetto Definitivo di un Niwvo Codice Penale" of AlfredoRocco in THE MoDEaRN APPROACH TO CRIMINAL LAw 390, 416 (Radzinowicz andTurner ed. 1945). Permission to include this quotation was quoted by the editors.

50. "In cases where there is evidence of real mental disease antecedent to thecommission of the alleged crime, and there is no evidence of a motive which mightinfluence a sane person, juries have no difficulty in finding either that the accused didnot appreciate the nature of his act or that he did not know it was wrong." LordSumner, in discussion of Lord Darling's bill, 57 H.L. DEB. 468 (5th ser. 1924). Tosame effect Mr. Travers Humphrey at a joint meeting of the Cambridge UniversityMedical Society and the Cambridge University Law Society, 1 CAMB. L.J. 302, 309(1923).

"In practice, therefore, the legal doctrine of criminal responsibility has beeninnocuous: it has not produced its logical conseqences, because it has never been fullyapplied." SULLIVAN, CRIME AND INSANITY 230 (1924). To the same effectMacNiven, Psychoses and Criminal Responsibility in MENTAL ABNORMALITY ANDCRIME 8, 70 (Radzinowicz and Turner ed. 1944).

51. H.M. Adv. v. Gibson, 2 Broun 332, 355 (1844) ; H.M. Adv. v. Yates, Ark.238, 241 (1847); H.M. Adv. v. Wylie, 3 Irv. 218, 234 (1858); H.M. Adv. v.McFadyen, 3 Irv. 650, 664 (1860).

52. H.M. Adv. v. Smith and Campbell, 2 Irv. 1, 61 (1855).53. H.M. Adv. v. Miller, 3 Coup. 16, 18 (1874).


"It is quite certain that what may be called scientific opinionon insanity has greatly altered in recent years, and Courts oflaw, which are bound to follow, as far as they can, the discoveriesof science and the results of experience, have altered their defini-tions and rules along with the experts. . . . But Acts of Par-liament can not deal with scientific opinions, and therefore it isleft to juries to come to a common-sense determination on thematter, assisted by the evidence led and any direction which theJudge can give." 5

The last sentence would seem to explain why Lord Dunedin, who be-came a Lord of Appeal in 1913, opposed Lord Darling's bill in theHouse of Lords.5

In 1925 a judge of the High Court of Justiciary sitting with ajury in a homicide case instructed them that "The question, accord-ingly, which you have to determine is whether, at the time of the acci-dent, the accused was or was not master of his own action." " Theverdict was not guilty. A distinguished Glasgow psychiatrist, writ-ing in 1944, stated that it is "the practice in the Scottish Courts toignore the McNaghten Rules." 57

In South Africa the Courts of the Cape of Good Hope and Trans-vaal after discussing the answers of the Judges in M'Naght en's Caseexpressly adopted the test of irresistible impulse.55

The six states of the Commonwealth of Australia divide evenlyon the question whether irresistible impulse is a defense. Queenslandand Western Australia have identical statutes which provide that thereis no criminal responsibility when the defendant was in "such a stateof mental disease . . as to deprive him of capacity to control hisactions. . ." " The Tasmanian Code provides that a person isnot responsible when the act was done "under an impulse which, byreason of mental disease, he was in substance deprived of any power

54. H.M. Adv. v. Brown, [1907] Sess. Cas. 67, 77.55. See page 964, supra.56. Lord Murray in H.M. Adv. v. Ritchie, [1926] J.C. 45, 49 (1925).57. MacNiven, Psychoses and Crindtd Behaziour in MENTAL ABNORMALITY AND

CRIME 8, 59 (Radzinowicz and Turner ed. 1944).58. The Supreme Court of the Cape of Good Hope laid down the rule that "the

defence of insanity is established if it be proved that the accused had, by reason ofsuch mental disease, lost the power of will to control his conduct in reference to theparticular act charged as an offence." Queen v. Hay, 16 Cape of Good Hope (S.C.)290, 301 (1899).

The Chief Justice of the Supreme Court of Transvaal in charging a jury stated"that though a man may have committed an act which, if an ordinary man had doneit would have entailed criminal consequences, yet if the jury are satisfied that by rea-son of mental disease he could not resist the impulse under which he acted, then he isnot criminally liable." Rex v. Smit [1906] Transvaal (S.C.) 783, 785.

59. Queensland: CRm. CODE § 27 (1899). Western Australia: CRim. CoDE § 27(1902).

1952]


to resist." " The courts of New South Wales, 1 South Australia 62

and Victoria apply the "knowledge of right and wrong" test, and ex-clude irresistible impulse.

A decision of the Court of Criminal Appeal of Victoria in thecase of' Rex v. Sodeman 3 in 1936 aroused considerable interest. TheCourt refused to allow an appeal from a conviction based on a chargeof the trial judge following the rule of M'Naghten's Case. The de-fendant applied to the High Court of Australia for leave to appeal,contending that the trial judge erred in not telling the jury that theyshould acquit "if disease of the mind deprived the prisoner of all con-trol." The four judges of the High Court, who heard the appeal,divided evenly and consequently the application for leave to appealwas refused.64 The two judges who voted not to allow the appealrelied on the decisions of the English Court of Criminal Appeal. Oneof the judges who favored allowing the appeal based his opinion onthe recommendation of Lord Atkin's Commission in 1923, and used thefollowing forceful language regarding the decisions of the EnglishCourt of Criminal Appeal: "It would be unsatisfactory if the commonlaw of England, of which the rule of M'Naughten's Case is a part,must be regarded as forever unable to adjust its rules to modern medi-cal knowledge and science, and this merely as a result of the decisionof a Divisional Court in England, the rulings of which are not consid-ered necessarily authoritative by the House of Lords." 65

On a petition to the Privy Council for "special leave to appeal" thedecision was that "their Lordships will therefore humbly advise HisMajesty to dismiss the petition." 66 The Lord Chancellor in hisopinion stated that if a different rule from that of the Court of CriminalAppeal should be adopted "the effect would be that there would be dif-ferent standards of law prevailing in England and the Dominions." 67

It is interesting to compare this pronouncement with the state of thelaw on this point in Queensland, Tasmania, Western Australia, Capeof Good Hope and Transvaal, already presented in this article.An Australian lawyer, commenting on the Sodeman case said: "Thereis, in Australia, however, as there seems to be in other countries whichderive their concepts from the English criminal law, a marked reluc-

60. Tasmania: Cim . CODE § 16 (1924).61. Rex v. Green, 25 N.S.W. W.N. 93 (1908).62. Barnes, A Century of the McNaghten Rules, 8 CAMB. L.J. 300, 318 (1944).63. Rex v. Sodeman [1936] V.L.R. 99.64. Sodeman v. The King, 55 Com. L.R. 192 (1936).65. Id at 227.66. Id. at 234.67. Id. at 232.


tance to face the problems to which a realistic approach to the questionof criminal responsibility give rise." 68

Irresistible impulse is not recognized in Canada nor New Zealand.The Canadian Criminal Code of 1906 contains a section codifyingthe "knowledge of right and wrong" test " and the courts in subsequentcases have disapproved irresistible impulse."' In one case the trialjudge, in charging the jury said "The law says to men who say theyare afflicted with irresistible impulses: 'If you can not resist an impulsein any other way, we will hang a rope in front of your eyes, andperhaps that will help.' "7 In a New Zealand case the jury was toldit was not ground for acquittal that the defendant "suffered froman impulse which he could not control." 72

The Criminal Code of India, adopted in 1860, incorporated the"knowledge of right and wrong" test."' The High Court in a wellconsidered opinion in 1906 stated that this rule might be appliedas well to extreme cases "where insanity affects the offender's willand emotions as to those where it affects his cognitive faculties, be-cause where the will and emotions are affected by the offender beingsubjected to insane impulses, it is difficult to say that his cognitivefaculties are not affected." 71

III

In thirteen European countries the penal codes specifically pro-vide that lack of volition under certain named conditions may negativecriminal responsibility.

France: "There is neither crime 7r nor dilit,71 when the defendantwas in a state of insanity at the time of his act or was impelled by a

68. Barry, Insanity in the Crimial Law of Australia, 21 CANl. B. REv. 429,439 (1943).

69. Canada: CRr. CODE § 19(1) (1907).70. The King v. Creighton, 14 Can. Crim. Cas. 349 (1908); Rex v. Jessamine,

21 Ont. W.R. 392, 4 Ont. W.N. 753 (1912).71. Riddell, J. in the King v. Creighton, supra note 70, at 350. See Meredith,

Insanity as a Criminal Defence: A Conflict of Views, 25 CANl. B. REv. 251 (1947).72. Reg. v. Deighton, 18 N.Z. 891 (1900).73. India: PENAL CoDa §84 (5th ed. 1910).74. Queen-Empress v. Kader Nasyer Shah, 23 India 604, 608 (Calcutta Ser.

1896). The Court based its statement on 2 STEPHEN, HISTORY OF THE CRIMINALLAw oF ENGLAND 167 (1883).

75. Serious offense.76. Offense of the middle grade. There are three grades of offenses in France-

crime, dilit and contravention. Keedy, Th7e Preliminary Itwestigation of Crine inFrance, 88 U. OF PA. L. Rnv. 385, 389 (1940).

1952]


force which he was not able to resist." " A similar provision occursin the codes of Belgium " and Luxemburg. 9

Germany: "An act does not constitute an offense if the actor atthe time of the commission of the act was either unable to realize theforbidden nature of his act or unable to act in accordance with properunderstanding because his consciousness was impaired or because hehas suffered either pathological mental derangement or mental in-firmity." 80

Italy: "One who has the capacity to intend and to will is respon-sible." 81

Switzerland: "One is not punishable who, being afflicted with amental disease, idiocy, or a serious derangement of conscience, doesnot have at the moment of acting the ability to understand the illegalnature of his act nor to decide in accordance with this understanding." 82

Poland: "No penalty attaches to one who at the time of acting,by reason of lack of mental development, mental disease or other de-rangement of the mental faculty, is not able to understand the sig-nificance of his act nor to control his conduct." 88

Turkey: "A person is not punishable who at the time he com-mitted the act was in a state of mental derangement sufficient to takeaway his perception or the freedom of his actions." 84

Soviet Republics: "Measures of social defense of a judicial-correctional character are not applicable to persons having committedoffenses in a state of chronic mental disease or of temporary derange-

77. France: PENAL CODE ANN. bk. II, art. 64 (1952). A substantially similarprovision occurs in Egypt: PENAL CODE tit. I, c. IX, § 62 (1937).

78. Belgium: PENAL CODE bk. I, art. 71 (1947).79. Luxemburg: PENAL CODE bk. I, c. VIII, § 71 (1900).80. Germany: CRIMINAL CODE pt. I, § 51 (English trans. 1947).The corresponding provision of the Criminal Code of the German Empire, en-

acted in 1871 was as follows: "An act does not constitute an offense if the actor atthe time of its commission was in a state of lack of consciousness or pathologicalmental derangement by which the free exercise of his will was excluded." §51(English trans. 1947).

The phrase "unable to act in accordance with proper understanding" in the newCode has the same meaning as "the free exercise of his will was excluded" in theImperial Code. THE STATUTORY CRIMINAL LAW OF GERMANY 44, Comment (1946),prepared by the Library of Congress.

81. Italy: PENAL CODE bk. I, tit. IV, art. 85 (1930).82. Switzerland: PENAL CODE ANN. pt. I, tit. II, art. 10 (1951).83. Poland: PENAL CODE ANN. c. II, art. 17, § 1 (1932, French trans. 1927).84. Turkey: PENAL CODE bk. I, tit. IV, art. 46 (1926, French trans. 1927).


ment of mental activity or in any other state of disease, if such personsare not able to understand their actions nor to control them." 85

Hungary: "One is not responsible who did the act in a mentalcondition or state of unconsciousness which deprived him of the abilityto understand the social danger of his action or to act according to hiswill." 88

Czechoslovakia: "A person is not criminally responsible for hisact if at the time of this act, being mentally deranged, he was not ableto discern that his act was dangerous to society or could not controlhis actions." 87

Bulgaria: "An act is not considered a crime if committed by aperson, who because of his retarded mental development, or permanentor temporary disorder of consciousness was not able to understandthe nature and significance of his act or to control his actions." 88

Greece: "An act will not be imputed to a person when at thetime he committed it, due to a diseased derangement of his intellectualfaculties or derangement of his conscience, he lacked the ability tounderstand the illegality of his actions or to act according to such un-derstanding." 89

Yugoslavia: "A person committing a criminal offence in a state oflasting or temporary mental disease, temporary mental derangement ordefective mental development is not criminally liable inasmuch as owing

85. Soviet Republics: PENAL CODE tit. III, art. 11 (1926, French trans. 1935).See Berman and Hunt, Criminal Law and Psychiatry: The Soviet Solution, 2 STAN.L. REv. 635, 640-642 (1950); Killian and Aarons, Use of Psychiatry in SovietCriminal Proceedings, 41 3. CRim. L. AND CRIMINOLoGY 136, 143-145 (1950).

"A criminal act is not considered a crime if committed by a person who at thetime of committing it could not understand the nature and significance of his actionor control his actions because of a morbid disturbance of his mental activity, or of un-consciousness or in consequence of a cause depending on a physical defect or an ill-ness, or defective mental development." Estonia: PENAL CODE §39 (1929). Trans-lated into Russian by Mr. Egon Sild, an Estonian lawyer. English translation byDr. Anthony Salys, Ass't Professor of Slavic Philology, University of Pennsyl-vania.

A similar provision was included in the PENAL CoDa OF LATVIA § 39 (Germantrans. 1933).

86. Hungary: PENAL CODE C. II, § 10-1 (1950). This section was translated byDr. Paul Gyorgy of the Medical Faculty of the University of Pennsylvania.

87. Czechoslovakia: PENAL CODE art. 11 (1951, French trans.).88. Bulgaria: PENAL CODE § 13 (1951). This section was translated by Dr.

Salys.89. Greece, PENAL CODE art. 34 (1950). This article was translated by Dr.

Michael Dorizas, Ass't Professor of Geography, University of Pennsylvania. Theearlier Greek Code made "ability to reason" the test of criminal responsibility.Greece, PENAL CODE art. 86 (1930).

1952]


to such a state of mind he was unable to understand the significance ofhis act or control his conduct." 'o

The penal codes of Denmark,9' Finland,9" Netherlands,93 Nor-way," Portugal,9" Roumania,96 Spain 9 7 and Sweden 9 provide, inslightly different wording, that a person suffering from mental diseaseis not criminally responsible. In Denmark "the court may find, on thebasis of medical evidence, that a state of irresistible impulse is quiteanalogous to that of insanity and falls within the legal concept of ir-responsibility in the sense of art. 16 of the Danish Penal Code, eventhough the offender knew that he was doing wrong; however the courtis not bound to do so, and in most cases the offender will be punished,though most likely with a reduced penalty." " Irresistible impulseis not a defense in Finland, but may be taken into account by the courtin assessing the penalty.' ° Swedish law does not recognize the "con-cept of irresistible impulse." 101 In Roumania it was decided in one

90. Yugoslavia: PENAL CODE art. 6 (1951, English trans.). See Donnelly, TheNew Yugoslav Criminal Code, 61 YAE L.J. 510 (1952).

The corresponding provision of the Penal Code of 1929 was as follows: "One isnot responsible who at the time the act was committed was not able to understand thenature and character of his act nor to act according to such understanding becauseof mental derangement or confused reasoning or lack of intellectual development orfeeble-mindedness." PENAL CODE §22 (1929). This section was translated by Dr.Alfred Senn, Professor of Germanic and Balto-Slavic Philology in the Universityof Pennsylvania.

91. "An act is not punishable when committed by a person who is irresponsibleby reason of mental disease." Denmark: PENAL CODE c. 3, § 16 (1949).

92. "An act committed by one who is insane is not punishable." Finland: PENALCoDE c. 3, § 3 (1920).

93. "A person is not punishable who commits an act for which he is not re-sponsible because of derangement of his mental capacity due to disease." Nether-lands: PENAL CODE bk. I, tit. 3, art. 37 (1949).

94. "An act is not punishable if the actor was mentally diseased." Norway:PENAL CODE c. 3, §44 (1929).

95. "Insane persons who do not have lucid intervals are not responsible for acrime." Portugal: PENAL CODE c. 4, art. 42, 2 (1930).

96. "It is not considered a crime or dilit if the act was committed in a stateof insanity or any other state causing loss of the use of reason through causes inde-pendent of one's will." Roumania: PENAL Coan art. 57 (1930). This article wastranslated by Dr. George 0. Seiver, Professor of Romance Languages in the Uni-versity of Pennsylvania.

97. "Exempt from criminal responsibility are: An insane person and one who isin a state of mental disturbance, unless this state was caused intentionally in orderto commit an offense." Spain: PENAL CODE bk. I, tit. I, c. 2, art. 8 (1944).

98. "There is no responsibility for an act committed under the influence of mentaldisease." Sweden: PENAL CODE c. 5, § 5 (LAws OF THE REA , 1949). The aboveprovisions of the codes of Denmark, Finland, Netherlands, Norway and Sweden weretranslated by Dr. Thorsten Sellin, Professor of Sociology in the University of Penn-sylvania.

99. Letter to the writer from Dr. Knud Waaben, Secretary in the Ministry ofJustice, Copenhagen, Feb. 15, 1952.

100. Letter to Professor Sellin from Dr. Inkeri Anttila, Docent of Criminal Lawand Criminology, University of Helsinki, Feb. 20, 1952.

101. Letter to Professor Sellin from Professor Ivar Strahl, Professor of CriminalLaw, University of Uppsala, Feb. 5, 1952.


case that an epileptic impulse constituted a defense.' No judicialinterpretations of the code provisions of Netherlands, Norway, Portu-gal and Spain was obtained.

The Supreme Court of the Irish Free State discussed the questionof irresistible impulse in two cases. In a case decided in 1935 103 coun-sel for the defendant contended that the trial judge should have chargedthe jury that this was a defense. The court decided that the judge'sfailure so to charge was proper as there was no evidence to supportsuch a defense. Kennedy, C. J., however, after stating "the Rule inM'Naghten's Case" said:

"The scientific exploration of mental diseases has in modemtimes been pursued with results to knowledge not contemplatedat a time not very remote from the present. A vast area ofresearch and discovery lies in the relatively short period of timebetween Hogarth's cartoon of Bedlam and current theories asto the upsetting of the glandular balance of the human body." 104

The Chief Justice also stated the following: "No doubt, substantialgrounds of objection in practice may be raised against admitting thedefence of 'irresistible impulse', but, the English Court of CriminalAppeal to the contrary notwithstanding, that is not sufficient to ruleit out of consideration, if it be shown to rest on any established prin-ciples of the criminal law." 105

In a case in 1937 the Court decided that it was proper for thejudge not to charge on irresistible impulse as there was no evidencethat such a condition of mind was present. It was, however, statedthat "In so deciding, this Court does not express any opinion on thequestion whether, if irresistible impulse had been established, it wouldafford any defence to the charge." 106

IV

In Siam the Penal Code contains the following section: "A personshall not be punished for any act done by him if at the time it is donehe is prevented either by defective mental power or by any diseaseaffecting his mind from appreciating the nature or illegality of hisact or from controlling his conduct." 107

102. PENAL CODE art. 57, n. 2 (1930).103. Att'y Gen. v. O'Brien [1936] Ir. 263 (1935).104. Id. at 269.105. Id. at 271.106. Sullivan, C. J. in Att'y Gen. v. Boylan [1937] Ir. 449, 461 (1937).107. Siam: PENAL CODE § 46 (1907, Official English trans.).

1952]


In Japan the Code provision is "An act of a person of unsoundmind is not punishable." 108 The question whether an irresistible im-pulse, without accompanying incapacity to understand the differencebetween right and wrong, is a defense has not been decided by thecourts, but "according to the prevailing theory among Japanese crimi-nal law professors an irresistible impulse is a defense" under the sec-tion of the Penal Code set forth above.' 9 The Chinese Penal Codeprovides that "an act committed by an insane person is not punish-able." 110

The Penal Code of the Philippine Islands provides that "an im-becile or lunatic, unless the latter has acted during a lucid interval"is exempt from criminal responsibility."' This provision has beenapplied literally and the defendant held irresponsible where the testi-mony showed that he was insane when he acted." 2

V

Ten Latin-American countries provide in their penal codes thatlack of volition may negative criminal responsibility.

Argentina: "One is not punishable who at the time he acted wasnot able because of defect or morbid disturbance of his faculties . .to understand the criminal character of his act nor to control his ac-tions." 118

Brazil: "One is exempt from punishment when, at the time of act-ing, by reason of mental disorder or retarded mental development, hewas entirely unable to understand the criminal character of his actionor to act in accordance with this understanding." 114

Costa Rica: "One is exempt from punishment who, due to a de-rangement of his mental faculties at the time of his act, was incapableof understanding the criminal character of his act or of controlling hisactions." 115

108. Japan: CRIMINAL CoDE, art. 39 (1947, English trans. 1950).109. Letter to the writer from Dr. Shigemitsu Dando, Professor of Criminal

Law, University of Tokio, Dec. 6, 1951.110. China: PENAL CODE art. 19 (1935 French trans.).111. Philippine Islands: PENAL CODE bk. I, tit. I, c. I, art. 8, 1 (1929).112. "We are convinced that the accused was a lunatic when he committed the

grave felony described in the record and that consequently he is exempt fromcriminal liability, and should be confined in an insane asylum." Malcolm, J. in Peoplev. Bascos, 3 Phil. 204, 207 (1922).

113. Argentina: PENAL CODE bk. I, tit. V, art. 34(1).114. Brazil: PENAL CODE tit. III, art. 22.115. Costa Rica: PENAL CODE bk. I, tit. II, c. III, art. 25(3).


Dominican Republic: "No offense has been committed if at thetime of committing the act, the person was, without his fault, in astate of insanity, or impelled by a force which he could not resist." 16

Ecuador: "No one can be punished for an act, regarded by thelaw as an infraction, if he did not commit it voluntarily and con-sciously." -117

Haiti: "There is no criminal offense if the accused was in a stateof insanity at the time he acted or was impelled by a force which hecould not resist." 118

Panama: "One will not be liable to punishment who commits awrongful act at a time when his mental faculties are deranged or con-fused due to illness causing lack of judgment or of consciousness andfreedom of action." 119

Peru: "One is exempt from punishment who commits a criminalact in a state of mental disease, idiocy, or serious derangement of hisconsciousness and does not have, at the time of acting, sufficient capac-ity to understand the criminal character of his act or to control it ac-cording to this understanding." '0

Uruguay: "A person is not responsible when at the time the actwas committed by reason of a physical, mental, constitutional or ac-quired illness or by intoxication he was in such a state of mental de-rangement that he was not capable, or only partially capable, of under-standing the illegal character of his act or of controllingit accordingto a correct understanding." 121

Venezuela: "A person is not punishable when he commits an actin a state of mental disease sufficient to deprive him of consciousnessor freedom of action." 122

In contrast with the foregoing the Penal Code of Puerto Ricoprovides that "a morbid propensity to commit prohibited acts by aperson, whose incapacity to understand the wrongful character of suchacts can not be proven, may not be set up as a defense for suchacts." 123

116. Dominican Republic: PENAL CODE bk. II, art. 64.117. Ecuador: PENAL CODE bk. I, tit. III, art. 32.118. Haiti: PENAL CODE bk. III, c. I, art. 48.119. Panama: PENAL CODE bk. I, tit. IV, art. 44.120. Peru: PENAL CODE bk. I, tit. X, art. 85(1).121. Uruguay: PENAL CODE bk. I, tit. II, c. II, art. 30.122. Venezuela: PENAL CODE bk. I, tit. V, art. 62.123. Puerto Rico: PENAL CODE tit. III, § 39(4).The above citations were taken from JmINEZ DR ASO0A, C6DIGoS PENALES

IBEROAMERICANOS (1946).

19521


In Bolivia,"2 4 Chile, 25 Colombia,'26 Cuba,127 Guatemala,'128 Hon-duras,"2 9 Mexico, 30 Nicaragua,' 31 Paraguay 32 and El Salvador, 8'the penal codes provide in general terms that an insane person can notbe criminally responsible. The courts of Colombia,134 Honduras '

and Mexico ' recognize irresistible impulse as a defense. In Para-guay it is not a defense, but the courts may consider it in assessing thepenalty.3 7 No interpretation of the code provision in the othercountries listed in this paragraph was obtained.

VI

In the states of this country the law regarding insanity as a de-fense is found both in statutes and in the decisions of the courts. Dur-ing the nineteenth century, starting with Georgia in 1817, statuteswere passed in sixteen states providing in substance that an insaneperson can not commit a crime. In Georgia, Illinois and Colorado,the statute states that "A lunatic or insane person, without lucid in-tervals, shall not be found guilty of any crime or misdemeanor withwhich he may be charged, provided the act so charged as criminal was

124. Bolivia: "state of insanity." PENAL CODE bk. I, tit. I, art. 13(2).125. Chile: "the lunatic or insane person unless he has acted during a lucid inter-

val." PENAL CODE bk. I, tit. I, par. II, art. 10(1).126. Colombia: "state of mental derangement." PENAL CODE bk. I, tit. I, c. II,

art. 29.127. Cuba: "insane person and one who at the time of committing the offense

was in a state of mental derangement although of a transitory nature." CODE OFSOCIAL DEFENSE bk. I, tit. III, c. II, art. 35(A).

128. Guatemala: "insane person and one who was in a state of transitory mentalderangement, unless this condition was caused intentionally." PENAL CODE bk. I,tit. I, par. II, art. 21(1).

129. Honduras: "the imbecile and lunatic unless he acted during a lucid interval.".PENAL CODE bk. I, tit. I, c. II, art. 7(1).

130. Mexico: "involuntary mental derangement of pathological and transitorycharacter." PENAL CODE bk. I, tit. I, c. IV, art. 15(11).

131. Nicaragua: "lunatic and insane person unless he acted during a lucid inter-val." PENAL CoDE bk. I, tit. I, c. IV, art. 21 (1).

132. Paraguay: "those who commit the offense under the influence of mental dis-ease which deprives them of the use of their mental faculties." PENAL CODE bk. I,sec. I, c. III, art. 18(3).

133. El Salvador: "the lunatic or insane person, unless he acted during a lucidinterval and one who for any cause, independent of his will, is completely deprivedof his reason." PENAL CODE bk. I, tit. I, c. II, art. 8(1).

The above citations were made from JImtNEZ DE AsfiA, C6DIGos PENAImSIBEROAmERICANOS (1946).

134. Letter to Carlos Berguido, Jr., Esq., of the Philadelphia Bar, from Dr.Efrain Calero Mercado of Cali, Dec. 27, 1951.

135. Letter to Mr. Berguido from Dr. Jorge Fidel Dur6n, Rector of the Uni-versity of Honduras, Dec. 10, 1951.

136. Letter to Mr. Berguido from Lic. R6mulo Becerra of Mexico City, Dec.19, 1951.

137. Letter to Mr. Berguido from Dr. C~sar Acosta of Asunci6n, Jan. 30, 1952.


committed in the condition of such lunacy or insanity"; 138 while inArkansas there is a similar statute without the proviso. 139 In allthese states except Georgia the courts have approved the test of ir-resistible impulse. 4 '

The statute in California, Utah, Arizona, Idaho and Montanaprovides that "All persons are capable of committing.crimes except. . lunatics and insane persons"; 141 while the Minnesota statute isphrased "lunatics or insane persons are incapable of committingcrimes."'" Utah is the only one of these states which has expresslyapproved irresistible impulse,143 while language of the Supreme Courtof Montana seems to approve it. 44 California, Arizona and Minne-sota have disapproved it.' 45 In Idaho the courts have not passed

138. GA. PENAL CODE div. I, § 5 (1817) ; CODE § 26-303 (1933).ILL. Caim. CODE §5 (1827); ANN. STAT. c. 38, §592 (1935)..COLO. Canc. CODE § 5 (1868); STAT. ANN. c. 48, § 5 (1935).

139. ARK. STAT. c. 44, §5 (1838); STAT. ANN. §41-108 (1947).140. People v. Krauser, 315 IIl. 485, 146 N.E. 593 (1925); People v. Nierst-

heimer, 401 Ill. 260, 81 N.E.2d 900 (1948). See discussion of cases prior to 1917in Keedy, Insanity and Criminal Responsibility, 30 HARV. L. REv. 535, 732-735(1917).

Ryan v. People, 60 Colo. 425, 153 Pac. 756 (1915); Oldham v. People, 61 Colo.413, 158 Pac. 148 (1916).

Green v. State, 64 Ark. 523, 43 S.W. 973 (1898) ; Bell v. State, 120 Ark. 530,180 S.W. 186 (1915) ; Hankins v. State, 133 Ark. 38, 201 S.W. 832 (1917) ; Seasev. State, 155 Ark. 130, 244 S.W. 450 (1922) ; Travis v. State, 160 Ark. 215, 254 S.W.464 (1923) ; Korsak v. State, 202 Ark. 921, 154 S.W.2d 348 (1941). Georgia doesnot recognize irresistible impulse as a defense unless it results from a delusion.

Roberts v. State, 3 Ga. 310 (1847) ; Flanagan v. State, 103 Ga. 619, 30 S.E. 550(1898) ; Rozier v. State, 185 Ga. 317, 195 S.E. 172 (1938).

141. Cal. Act to Amend Penal Code § 2 (1874) ; PENAL CODE pt. I, tit. I, § 26(1949).

UTAH PENAL CODE § 22 (1876); CODE ANN. § 103-1-40 (1943).Aaiz. PENAL CODE pt. I, tit. I, § 30-3 (1887) ; CODE ANN. § 43-114 (1939).IDAHO TER. REV. STAT. § 6330 (1887); CODE ANN. § 18-201 (1947).MONT. PENAL CODE pt. I, tit. I, § 30-3 (1895) ; REv. CODEs ANN. § 94-201

(1947).142. MINN. PENAL CODE § 18 (1886); STAT. § 610.08 (1949).

143. State v. Green, 78 Utah 580, 6 P.2d 177 (1931). The opinion of Hansen, J.contains a comprehensive discussion of the subject.

144. "It therefore follows that one may have mental capacity and intelligencesufficient to distinguish between right and wrong with reference to the particular act,and to understand the consequence of its commission, and yet be so far deprived ofvolition and self control by the overwhelming violence of mental disease that he is notcapable of voluntary action, and therefore not able to choose the right and avoid thewrong." Brantly, C.J. in State v. Peel, 23 Mont. 358, 369, 59 Pac. 169, 173 (1899).Approved in State v. Keerl, 29 Mont. 508, 517, 75 Pac. 362, 365 (1904) and in Statev. Leakey, 44 Mont. 354, 370, 120 Pac. 234, 239 (1911).

145. People v. Hoin, 62 Cal. 120 (1882) ; People v. Ward, 105 Cal. 335, 38 Pac.945 (1894) ; People v. Hubert, 119 Cal. 216, 51 Pac. 329 (1897) ; People v. Owens,123 Cal. 482, 56 Pac. 251 (1899) ; People v. Morisawa, 180 Cal. 148, 179 Pac. 888(1919); People v. Walter, 7 Cal.2d 438, 60 P.2d 990 (1936).

Judd v. State, 41 Ariz. 176, 16 P.2d 720 (1932).State v. Scott, 4 Minn. 365, 43 N.W. 62 (1899) ; State v. Simenson, 195

Minn. 258, 262 N.W. 638 (1935). See note, 17 MINN. L. REv. 630 (1933).

1952]


on the exact question, but have announced the "knowledge of rightand wrong" test.146

The corresponding provision of the statute in New York, Texas,Nevada, South Dakota, and Oklahoma is "An act done by a personin a state of insanity can not be punished as a public offense." 147

Nevada in 1912 also adopted the provision that "All persons areliable to punishment . . except lunatics and insane persons." 148

Texas has disapproved irresistible impulse. 149 In Nevada the exactquestion has not arisen, but the Supreme Court has approved the"knowledge of right and wrong" test.150

Without repealing the statute exempting insane persons fromcriminal liability, New York, Minnesota, South Dakota and Oklahomaenacted two provisions, the first stating, with varying wording, that aninsane person is liable unless he was unable to distinguish between rightand wrong '5" and the second specifically stating that "A morbid pro-pensity to commit prohibited acts existing in the mind of a person whois not shown to have been incapable of knowing that such acts werewrong shall constitute no defense." 152 Without any previous enact-ment North Dakota adopted the "right and wrong" provision, 53 and

146. People v. Walter, 1 Idaho 386 (1871) ; State v. Larkins, 5 Idaho 200, 47Pac. 945 (1897) ; State v. Wetter, 11 Idaho 433, 83 Pac. 341 (1905) ; State v. Flem-ing, 17 Idaho 471, 106 Pac. 305 (1910).

147. N.Y. REv. STAT. vol. II, pt. IV, tit. VII § 2 (1829); PENAL LAW § 1120(1944).

TEx. PENAL Cona art. 41 (1857); PENAL CODE ANN. art. 34 (1938).NEv. TER. LAws c. CIV, § 571 (1861) ; Comp. LAWS ANN. § 11183 (1929).S.D. PENAL COD. § 8833 (1899); CODE § 34-2001 (1939).Oy:LA. STAT. § 5807 (1890) ; STAT. tit. 22, § 1161 (1941).

148. NEV. REv. LAWS § 6268 (1912); Comp. LAWS ANN. § 9952 (1929).149. Hurst v. State, 40 Tex. Cr. 378, 50 S.W. 719 (1899) ; Cannon v. State, 41

Tex. Cr. 467, 56 S.W. 351 (1900) ; Thomas v. State, 55 Tex. Cr. 293, 116 S.W. 600(1909) ; Hogue v. State, 65 Tex. Cr. 539, 146 S.W. 905 (1912) ; Carnes v. State,101 Tex. Cr. 273, 275 S.W. 1002 (1925); Langhorn v. State, 105 Tex. Cr. 470, 289S.W. 57 (1926).

150. State v. Lewis, 20 Nev. 333, 22 Pac. 241 (1889) ; State v. Hartley, 22 Nev.342, 40 Pac. 372 (1895). In a later case the trial court told the jury that "before thedefendant can be excused on the ground of insanity the jury must believe from the evi-dence that the defendant at the time of the commission of the crime was withoutsufficient reason to know what he was doing, or that, as the result of mental unsound-ness, he had not sufficient will power to govern his action by reason of some insaneimpulse which he could not resist or control." The Supreme Court in affirming theconviction expressed no opinion regarding the correctness of this charge. State v.Clancy, 38 Nev. 181, 147 Pac. 449 (1915).

151. N.Y. LAWS vol. III, c. 676, § 21 (1881); PENAL LAW § 1120 (1944).MINN. PENAL CODE § 19 (1886); STAT. 610.10 (1949).S.D. PENAL CODE § 7465 (1889) ; CODE § 13-0201 (1939).OKLA. STAT. § 1863 (1890); STAT. tit. 21 § 152 (1941).

152. N.Y. LAWS vol. III, c. 676 §23 (1881); PENAL LAW § 34 (1944).MINN. PENAL CODE § 21 (1886); STAT. 610.09 (1949).S.D. PENAL CoDE § 7467 (1889); CODE § 13.0505 (1939).ONLA. STAT. § 1865 (1890); STAT. tit. 21 § 154 (1941).

153. N.D. REv. CODEs § 6814 (1895); REv. CODE § 12-0201 (1943).


Oregon the one relating to "morbid propensity." 154 The courts ofNew York, Minnesota, and Oklahoma, which, as already stated, haveboth the "right and wrong" and "morbid propensity" provisions, havedisapproved irresistible impulse.'55 It is a reasonable conclusion that asimilar decision will be made in South Dakota when the question arises.The defense has been rejected in Oregon,'56 and probably will be inNorth Dakota.

By way of summary it may be stated that in the states which dur-ing the nineteenth century adopted statutes on insanity as a test ofliability Arkansas, Colorado, Illinois and Utah recognize irresistibleimpulse, while Arizona, California, Georgia, Minnesota, New York,Oklahoma, Oregon and Texas have disallowed it. In Idaho andNevada the "knowledge of right and wrong" test has been approved.It is remarkable that except in a very few cases the courts in reachinga decision made no mention of the existing statute or statutes. Inthe doubtful states Montana seems to favor the test, while it will prob-ably be disallowed in Idaho, North Dakota and South Dakota.

The Supreme Court of Louisiana in 1904 inferentially approvedthe test of irresistible impulse.157 However, in 1942 the Legislatureenacted a statute embodying the "knowledge of right and wrong"rule. 58 When the question arises again it is likely that the court,if it adverts to the statute, will not approve irresistible impulse.

In the states which do not have statutes on insanity as a defensethe irresistible impulse test has been approved in Alabama,'59 Con-

154. ORa. Cami. CODE § 729 (1864) ; ComP. LAws ANIt. § 23-122 (1940).155. Flanagan v. People, 52 N.Y. 467 (1873); People v. Waltz, 50 How. Pr.

204 (1874); People v. Carpenter, 102 N.Y. 238, 6 N.E. 584 (1886).For Minn. citations see note 145 supra.Sloan v. State, 25 Okla. Cr. 15, 218 Pac. 717 (1923) ; Tittle v. State, 44 Okla.

Cr. 287, 280 Pac. 865 (1929) ; Merrick v. State, 56 Okla. Cr. 88, 34 P.2d 281 (1934);Hoggatt v. State, 67 Okla. Cr. 377, 94 P.2d 264 (1939).

156. State v. Hassing, 60 Ore. 81, 118 Pac. 195 (1911); State v. Grayson, 126Ore. 560, 270 Pac. 404 (1928) ; State v. Wallace, 170 Ore. 60, 131 P.2d 222 (1942).See Williamson, The Insanity Defeitse, 1 ORm. L. REv. 100 (1922).

157. State v. Lyons, 113 La. 959, 37 So. 890 (1904).158. LA. Acts no. 43, art. 14 (1942) ; REv. STAT. tit. XIV, c. 1, § 14 (1950).159. Somerville, J., in the famous case of Parsons v. State announced the follow-

ing rule: "(1) If, by reason of the duress of such mental disease, he had so far lostthe power to choose between the right and wrong, and to avoid doing the act inquestion, as that his free agency was at the time destroyed. (2) And if, at the sametime, the alleged crime was so connected with such mental disease, in the relationof cause and effect, as to have been the product of it solely!" 81 Ala. 577, 597,2 So. 854, 866 (1886).

The above rule of Parsons v. State was approved in Wingard v. State, 247 Ala.488, 25 So.2d 170 (1946).

Before Parsons v. State was decided the Supreme Court of Alabama had statedinsanity was not a defense unless "the accused was not conscious that in doing theparticular act he was committing a crime against the laws of God and his country."Dargan, C. J. in McAllister v. State, 17 Ala. 434, 437 (1850).

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necticut, 60 Delaware,'' Indiana,'6 2 Kentucky,'6 Massachusetts, 6 "

Michigan,"0 5 Vermont,166 Virginia "" and Wyoming. 6 It has been

160. In a first degree murder case the trial judge charged the jury "That if theprisoner was laboring under some controlling disease, which was an active powerwithin him, which he could not resist, then he was not responsible." The SupremeCourt stated that "We think the charge of the court upon the subject of insanity wasunexceptionable." Carpenter, J. in State v. Johnson, 40 Conn. 136, 142 (1873).

161. In 1851 the trial judge in a murder case, where insanity was set up as a de-fense, instructed the jury that "the question is not how much reason and judgmenta man has, but whether he had at the time the ability to distinguish between rightand wrong in reference to the act itself, and the power to choose whether he woulddo it or not." Harrington, J. in State v. Windsor, 5 Harr. 512, 539 (Del. 1856).The judge also quoted the following from Lord Denman's charge to the jury in Reg.v. Oxford, 9 C. 8 P. 525 (1840) : "If some controlling disease was in truth the actingpower within him, which he could not resist, then he will not be responsible." 5Harr. at 540.

A similar charge was given in State v. Reidell, 9 Houst. 470, 472, 14 Atl. 550,551 (Del. 1888) and State v. Jack, 4 Penne. 470, 475, 58 At. 833, 834 (Del. 1903).

162. Stevens v. State, 31 Ind. 485 (1869) ; Bradley v. State, 31 Ind. 492 (1869) ;Goodwin v. State, 96 Ind. 550 (1884); Plake v. State, 121 Ind. 433, 23 N.E. 273(1890); Morgan v. State, 190 Ind. 411, 130 N.E. 528 (1921).

In 1888 a trial judge instructed the jury that "If he [defendant] was laboringunder an irresistible, uncontrollable mental delusion, impelling him to do said act,that he was at the time of the perpetration of said killing in such a state of mindas to be unable to control his will and his actions in regard to the act so committed,in judgment of law he was insane." The Supreme Court decided that this instruc-tion "correctly stated the law as it has been heretofore enunciated by this court."Coffey, J. in Grubb v. State, 117 Ind. 277, 288, 20 N.E. 725, 726 (1888).

163. Scott v. Com., 4 Met. 227 (Ky. 1863); Abbott v. Com., 107 Ky. 624, 55S.W. 196 (1900) ; Jolly v. Com., 110 Ky. 190, 61 S.W. 49 (1901) ; Cline v. Com.,248 Ky. 609, 59 S.W.2d 577 (1933) ; Sharp v. Com., 308 Ky. 765, 215 S.W.2d 983(1948).

164. Com. v. Rogers, 7 Metc. 500 (Mass. 1844) ; Com. v. Johnson, 188 Mass. 382,74 N.E. 939 (1905); Com. v. Cooper, 219 Mass. 1, 106 N.E. 545 (1914); Com. v.McCann, 325 Mass. 510, 91 N.E.2d 214 (1950). The Rogers, Johnson and Coopercases are discussed in Keedy, Inanity and Criminal Responibility, 30 HARV. L. Rev.535, 724-730 (1917).

165. "The law has no theories on the subject of insanity. It holds every one re-sponsible who is compos nzentis, or a free agent, and every one irresponsible who isnon compos mentis, or not having control of his mind." Campbell, C. J. in People v.Finley, 38 Mich. 482, 483 (1878).

In People v. Durfee, 62 Mich. 487, 29 N.W. 109 (1886), the Supreme Court ap-proved the following charge to the jury: "If by reason of disease, the defendantwas not capable of knowing he was doing wrong in the particular act, or if he hadnot the power to resist the impulse to do the act by reason of disease or insanity,that would be an unsound mind."

To the same effect are People v. Quimby, 134 Mich. 625, 96 N.W. 1061 (1903)and People v. Bowen, 165 Mich. 231, 130 N.W. 706 (1911).

166. Doherty v. State, 73 Vt. 380, 50 Atl. 113 (1901), State v. Kelley, 74 Vt.278, 52 Atl. 434 (1902).

167. Dejarnette v. Com., 75 Va- 867 (1881) ; Thurman v. Com., 107 Va. 912, 60S.E. 99 (1908).

168. "The court very properly, we think, called the attention of the jury to thedistinction between an act committed by reason of insanity which destroyed the willpower, and an act committed as the result of uncontrolled passion not the result ofdisease." Beard, J. in Flanders v. State, 24 Wyo. 81, 156 Pac. 39, 43 (1916).


disapproved in Florida,169 Iowa,170 Kansas,' 7 ' Maine, 72 Maryland,7 3

Mississippi,' 4 Missouri,1 75 Nebraska, 7 " New Jersey,1 77 North Caro-

169. Davis v. State, 44 Fla. 32, 32 So. 822 (1902); Collins v. State, 88 Fla.578, 102 So. 880 (1925) ; Crews .v. State, 143 Fla. 263, 196 So. 590 (1940).

170. In 1868 Dillon, C. J. of the Supreme Court stated the following: "But if,from the observation and concurrent testimony of medical men who make the studyof insanity a specialty, it shall be definitely established to be true, that there is anunsound condition of the mind-that is, a diseased condition of the mind, in which,though a person abstractly knows that a given act is wrong, he is yet by an insaneimpldse, that is, an impulse proceeding from a diseased intellect, irresistibly drivento commit it-the law must modify its ancient doctrines and recognize the truth,and give to this condition, when it is satisfactorily shown to exist, its exculpatoryeffect." State v. Felter, 25 Iowa 67, 82 (1868).

The Chief Justice further said: "The jury, in substance, should be told that ifthe defendant's act in taking the life of his wife (if he did take it), was caused bymental disease or unsoundness, which dethroned his reason and judgment with re-spect to that act, which destroyed his power rationally to comprehend the nature andconsequences of that act, and which, overpowering his will, irresistibly forced himto its commission, then he is not amenable to legal punishment." Id. at 83. It willbe noted that under this test both inability to comprehend the act and an irresistibleimpulse are required in order that the defendant may not be amenable to puinshment.

The instruction suggested by Dillon, C. J. was approved in a number of cases.State v. Bruce, 48 Iowa 530 (1878) ; State v. George, 62 Iowa 682, 18 N.W. 298(1884). However, in a case decided in 1904, where the trial court employed thedouble test of inability to understand the act and irresistible impulse the SupremeCourt reversed the conviction, stating "Proof of either condition would entitle him toan acquittal." State v. McGruder, 125 Iowa 741, 749, 101 N.W. 646, 648 (1904).To the same effect see State v. Wegener, 180 Iowa 102, 162 N.W. 1040 (1917). In1928 these two cases were in effect overruled, the Supreme Court approving the fol-lowing instruction: "In order to be an excuse and defense for a criminal act, theperson accused and who claims insanity as a defense must prove that the crimecharged was caused by mental disease or unsoundness which dethroned, overcame, orswayed her reason and judgment with respect to that act, which destroyed her powerrationally to comprehend the nature and consequences of that act, and which over-powering her will, irresistibly forced her to its commission." State v. Buck, 205Iowa 1028, 219 N.W. 17 (1928).

See interesting note discussing the Iowa cases and approving the test of irresis-tible impulse. 32 IowA L. Rav. 714 (1947).

In a recent case the Supreme Court approved the holding in State v. Buck andstated the following: "We are committed to the 'right and wrong' test for insanity,and to the exclusion of the 'irresistible impulse' theory. 'Irresistible impulse' can bea factor under our decisions when, and only when, it so operates upon a diseasedmind as to destroy ther comprehension of consequences; it is not, in and of itself, a de-fense." Thompson, J. in State v. Beckwith, 46 N.W.2d 20, 30 (Iowa 1951).

171. State v. Nixon, 32 Kan. 205, 4 Pac. 159 (1884) ; State v. Mowry, 37 Kan.369, 15 Pac. 282 (1887) ; State v. Arnold, 79 Kan. 533, 100 Pac. 64 (1909) ; State v.White, 112 Kan. 83, 209 Pac. 660 (1922).

172. State v. Knight, 95 Me. 467, 50 Atl. 276 (1901). Whitehouse, J. quotedwith approval the following statement of the court in State v. Harrison, 36 W. Va.729, 15 S.E. 982 (1892) : "For myself I can not see how a person who rationallycomprehends the nature and quality of an act, and knows that it is wrong and criminal,can act through irresistible innocent impulse." 95 Me. at 478, 50 AtI. at 279.

173. The irresistible impulse test was expressly repudiated and the "right andwrong" test adopted in Spencer v. State, 69 Md. 28, 13 Atl. 809 (1888). The ruleof this case was approved in Deems v. State, 127 Md. 624, 96 AtI. 878 (1915) andTaylor v. State, 187 Md. 306, 49 A.2d 787 (1946).

174. Cunningham v. State, 56 Miss. 269 (1879); State v. Smith, 95 Miss. 786,49 So. 945 (1909) ; Eatman v. State, 169 Miss. 295, 153 S.W. 381 (1934).

175. State v. Pagels, 92 Mo. 300, 4 S.W. 931 (1887) ; State v. Miller, 111 Mo.542, 20 S.W. 243 (1892) ; State v. Soper, 148 Mo. 217, 49 S.W. 1007 (1899) ; Statev. Riddle, 245 Mo. 451, 150 S.W. 1044 (1912) ; State v. Jackson, 346 Mo. 474, 142S.W.2d 45 (1940). In State v. Jackson the court stated that "we do not recognize

19521


lina,'178 South Carolina,' 79 Tennessee,18 0 Washington .81 and Wiscon-sin .1 2 In New Mexico, 183 Ohio,' Pennsylvania 185 and West Vir-

the defense of 'volitional insanity' (meaning that although the accused can distinguishbetween right and wrong, still he is unable because of mental disease to resist theimpulse to commit the criminal act)." Ellison, P.J. at 481, 142 S.W.2d at 49. In acase decided just two weeks after State v. Jackson the Supreme Court approved anopinion by Cooley, J. in which he said "The doctrine of 'irresistible impulse' as anexcuse or defense for crime, at least unless dute to a diseased mi-nd-in effect, in-sanity-is not recognized in Missouri." State v. West, 346 Mo. 563, 570, 142S.W.2d 468, 472 (1940). (Emphasis added).

176. Schwartz v. State, 65 Neb. 196, 91 N.W. 190 (1902); Shannon v. State,111 Neb. 457, 196 N.W. 635 (1923); Torske v. State, 123 Neb. 161, 242 N.W. 408(1932) ; Fisher v. State, 154 Neb. 166, 47 N.W.2d 349 (1951).

177. State v. Spencer, 21 N.J.L. 196 (1846) ; Genz v. State, 59 N.J.L. 488, 37Atl. 69 (1896); Mackin v. State, 59 N.J.L. 495, 36 Ati. 1040 (1897); State v.Carrigan, 93 N.J.L. 268, 108 AtI. 315 (1919); State v. Noel, 102 N.J.L. 659, 133AtI. 274 (1926) ; State v. Cordasco, 2 N.J. 189, 66 A.2d 27 (1949).

178. State v. Brandon, 53 N.C. 463 (1862); State v. Cooper, 170 N.C. 719, 87S.E. 50 (1915) ; State v. Terry, 173 N.C. 761, 9Z S.E. 154 (1917) ; State v. Shackle-ford, 232 N.C. 299, 59 S.E.2d 825 (1950) semble.

The Special Committee on Crime and Psychiatry of the North Carolina Bar As-sociation in 1951 made the following recommendation: "The presently accepted legaltest of insanity-the capacity to distinguish right from wrong--is an adequate test ofmental disease affecting the reasoning faculties, but it should be extended to includediseases which destroy will-power and volition and capacity to control one's conduct.Many hospitalized insane can distinguish right from wrong, but what renders themsocially irresponsible is their lack of power to control their conduct along rationallines." Gardner, Insanity as a Defense in The North Carolina Criminal Law, 30N.C.L. Ray. 4, 25 (1951).

179. State v. Bundy, 24 S.C. 439 (1885) ; State v. Alexander, 30 S.C. 74, 8 S.E.440 (1888) ; State v. Levelle, 34 S.C. 120, 13 S.E. 319 (1891) ; State v. Gilstrap, 205S.C. 412, 32 S.E.2d 163 (1944) ; State v. Gatlin, 208 S.C. 414, 38 S.E.2d 238 (1946).

180. Wilcox v. State, 94 Tenn. 106, 28 S.W. 312 (1894); Davis v. State, 161Tenn. 23, 28 S.E.2d 993 (1930); Temples v. State, 183 Tenn. 531, 194 S.W.2d 332(1946).

181. In 1930 the Supreme Court stated the following: "Insanity in law coversmore than the relation of the person and the particular act which is the subject ofjudicial investigation. The legal problem must resolve itself into the inquiry whetherthere was mental capacity, or moral freedom, to do or abstain from doing the par-ticular act." Holcomb, J. in State v. Schafer, 156 Wash. 240, 252, 286 Pac. 833,838 (1930).

In 1948 the Supreme Court expressly disapproved irresistible impulse as a test.Referring to the rule laid down in State v. Schafer, spra, Jeffers, J. said: "Weare unable to believe that, by the language last quoted from the Schafer case, this courtintended to depart from the right and wrong test, thereinbefore announced." State v.Maish, 29 Wash.2d 52, 58, 185 P.2d 486, 489 (1947). This case was approved in Statev. Odell, 227 P.2d 710 (Wash. 1951). See criticism of State v. Maish in Hoedemaker,"Irresistible Impidse" as a Defense in the Criminal Law, 23 WAsH. L. Rav. 1 (1948).

182. Oborn v. State, 143 Wis. 249, 126 N.W. 737 (1910). However, in two earliercases the court approved a charge to the jury which included as a defense the condi-tion where "his will, by which is meant the governing power of his mind, has beenotherwise than voluntarily so completely destroyed that his actions are not subject toit, but are beyond his control." Butler v. State, 102 Wis. 364, 78 N.W. 590 (1899)and Lowe v. State, 118 Wis. 641, 96 N.W. 417 (1903).

183. In a first degree murder case the trial judge instructed the jury that "al-though he was conscious of the act he was doing and knew its consequences, but wasin consequence of his insanity wrought up to such a frenzy as rendered him incapableand unable to control his actions or direct his movements, then you are instructedthat the defendant will not be legally responsible for his acts and you will in thatcase acquit him." The Supreme Court held this instruction erroneous saying, "Thereare conditions of insanity without doubt, which deprive the will of its normal govern-ing power, yet fall far short of amounting to 'frenzy' in the ordinary acceptance of


ginia,'80 the expressions of opinion by the courts are so conflicting that

that word." Abbott, J. in Territory v. Kennedy, 15 N.M. 556, 562, 110 Pac. 854,856 (1910).

In 1936 the Supreme Court stated the following: "We have not departed fromthe 'right and wrong' test as established in the famous McNaughten Case, 10Clark and F. 199, which is the generally accepted doctrine of the English andAmerican courts. The capacity of the accused to distinguish right from wrong inrespect to the act charged as a crime at the time of its commission is made the testof his responsibility." Zinn, J. in State v. Roy, 40 N.M. 397, 404, 60 P.2d 646, 650(1936).

In 1938 the Supreme Court after laying down the "right and wrong" test, asstated in State v. Roy, supra, added the following: "There may, indeed, be insaneimpulses which are so far uncontrollable that there is no criminal liability therefor,but they must be shown to be the result of a diseased mind." Zinn, J. in State v.Moore, 42 N.M. 135, 158, 76 P.2d 19, 33 (1938).

184. The Supreme Court of Ohio was the first appellate court in this country torecognize lack of control as a defense. In 1843 the Court approved the followingtests: "Was the accused a free agent in forming the purpose to kill Cyrus Sells?Was he, at the time the act was committed, capable of judging whether that act wasright or wrong? And did he know at the time that it was an offence against thelaws of God and man?" Clark v. State, 12 Ohio Rep. 483, 494 n. (1843).

In 1853 Corwin, J. speaking for the Supreme Court said: "And I have no doubtthat every correct definition of insanity either expressly or by necessary construc-tion, must suppose freedom of will, to avoid a wrong, no less than the power to dis-tinguish between the wrong and the right." Farrer v. State, 2 Ohio St. 54, 70(1853).

The Supreme Court in 1872 approved the tests laid down in Clark v. State, supra,Blackburn v. State, 23 Ohio St., 146, 165 (1872).

In 1942 the Court of Appeals for Cuyahoga County expressly disapproved ir-resistible impulse as a test. State v. Cumberworth, 69 Ohio App. 239, 43 N.E.2d 510.The court in reaching this conclusion made no reference to the decisions of the Su-preme Court, but relied upon the answers of the Judges in M'Naghten's case; State v.Harrison, 36 W. Va. 729, 15 S.E. 982 (1892) ; People v. Hubert, 119 Cal. 216, 51Pac. 229 (1897) and an article by Professor Waite, Irresistible Impulse and CriminalLiability, 23 MIcH. L. REv. 443 (1925).

In 1948 the Supreme Court, without making reference to State v. Cumberworth,supra, stated the following: "We can find nothing in the record and we havesearched diligently which suggests that appellant did not know right from wrongand did not have the ability to choose the right and abjure the wrong in respect tothe crime he committed." Turner, J. in State v. Frohner, 150 Ohio St. 53, 117, 80N.E.2d 868, 898 (1948). It seems likely that, when the question again arises in theSupreme Court, it will adhere to its former holdings.

185. In 1846 Chief Justice Gibson made his famous statement to the jury inCom. v. Mosler, 4 Pa. 264 (1846). The Chief Justice stated the following atp. 267: "But there is a nwral or homicidal insanity, consisting of an irresistible im-pulse to kill, or to commit some other particular offence. There may be an unseenligament pressing on the mind, drawing it to consequences which it sees but can notavoid, and placing it under a coercion, which while its results are clearly perceived,is incapable of resistance."

The Chief Justice then qualified this statement with the following: "The doctrinewhich acknowledges this mania is dangerous in its relations, and can be recognizedonly in the clearest cases. It ought to be shown to have been habitual or at least tohave evinced itself in more than a single instance. . . . To estabish it as a justifi-cation in any particular case, it is necessary either to show, by clear proofs, its con-temporaneous existence evinced by present circumstances, or the existence of ahabitual tendency developed in previous cases, becoming in itself a second nature."Ibid.

A similar instruction without the qualifications was given to the jury in latercases. Allison, J. in Com. v. Shurlock, 14 Leg. Intel. 33 (Pa. 1857) ; Allison, J. inCom. v. Smith, 6 Am. L. Reg. 257, 267 (Pa. 1858) ; Allison, J. in Com. v. Freeth,6 Am. L. Reg. 400, 404 (Pa 1858) ; Brewster, J. in Com. v. Winnemore, 1 Brewst.356, 367 (Pa. 1867).

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it is impossible to state with any degree of certainty what is the lawon the subject. The Supreme Court of Rhode Island has never decided

The Supreme Court expressly approved irresistible impulse in Coyle v. Com.,100 Pa. 573, 578 (1882) and Taylor v. Com., 109 Pa. 262, 270 (1885). In Corn v.DeMarzo, 223 Pa. 573, 575, 72 Ati. 893 (1909) the Supreme Court in a Per Curiamopinion said "The power to distinguish between right and wrong is not always theonly test of responsibility, since this power may exist without the power of self-control."

In 1925 Shaffer, J. speaking for the Supreme Court stated the following: "If therehas been any departure from the wise rule which makes the test of the accused'sresponsibility, his ability to distinguish between right and wrong, it has been sur-rounded at all times with the restrictions imposed by Chief Justice Gibson when sittingin the court of oyer and terminer in Com. v. Mosler, 4 Pa. 264." Justice Shafferthen quoted the qualifications made by Chief Justice Gibson, which are set forthsupra. Com. v. Cavalier, 284 Pa. 311, 320, 131 Atl. 229, 233 (1925).

In 1930 the trial judge in a murder case charged that irresistible impulse wasa defense. The defendant, however, was convicted and appealed. On the appealcounsel for the appellant cited Com. v. Cavalier, stpra, for the proposition that the"defense of irresistible impulse was recognized by our courts" while counsel for theCommonwealth cited the same case to uphold the opposite contention., Com. v.Shroeder, 302 Pa. 1, 3, 152 Atl. 835 (1930).

The conviction was affirmed and Com. v. Cavalier was approved. Shaffer, J.also added the dictum: "The court should have told the jury that the defense of ir-resistible impulse is one which one law does not recognize." Supra at 10, 152 AtI.at 837.

In Com. v. Szachewicz, 303 Pa. 410, 154 Atl. 483 (1931), no question of insanitywas raised but Kephart, J. stated the following: "We have held that our test for in-sanity, as it relates to crime, is his ability to distinguish between right and wrong:Taylor v. Com. 109 Pa. 262. Persons are not below par, subnormal, or mentallydeficient in judgment, in determinative or discriminative power or in self-control,when considered in relation to criminal acts, if they know the difference betweenright and wrong." 303 Pa. at 416, 154 Atl. at 484. It has already been pointed outthat the Supreme Court approved the test of irresistible impulse in Taylor v. Com.,cited supra by Justice Kephart.

In Com. v. Lockard, 325 Pa. 56, 60, 188 Atl. 755, 757 (1937), Drew, J. stated"The test of insanity in this jurisdiction, as it relates to crime, is the ability to dis-tinguish between right and wrong: Commonwealth v. Szachewicz, 303 Pa. 410."

In a case decided in 1949 Justice Stern stated the following: "Apart from thefact that 'confusional insanity' is apparently an antiquated and discarded theoryand that the proposition that there could be such a thing as a momentary insanitywas sharply challenged by a witness for the Commonwealth, it would seem quiteobvious that defendant's witness failed to differentiate between a mere temporaryfrenzy or emotional excitation, and insanity within the legal meaning of that term,namely inability, from disease of the mind, to understand the nature and qualityof the act and to distinguish between right and wrong with respect to it: Common-wealth v. Szachewicz, 303 Pa. 410, 416, 417, 154 Atl. 483, 484, 485; Commonwealthv. Lockard, 325 Pa. 56, 60 188 Atl. 755, 757. Certainly neither social maladjustment,nor lack of control, nor impulsiveness, nor psycho-neurosis, nor emotional instability,nor chronic malaria, nor all of such conditions combined, constitute insanity withinthe criminal-law conception of that term." Com. v. Neill, 362 Pa. 507, 513, 514, 67A.2d 276, 279, 280 (1949).

In two cases in the Federal Court for the Western District of Pennsylvania thejudge in 1950 cited Com. v. Neill in support of the following rule:

"In order for insanity to be a legal defense to the commission of a crime theremust be:

(a) Such a perverted and deranged condition of the mental and moral facultiesas to render person incapable of distinguishing between right and wrong; or

(b) he must be unconscious and unaware at the time of the nature of the act heis committing; or

(c) where, though conscious of it and able to distinguish between right andwrong and know that the act is wrong, yet his will, or the governing power of hisinind, has been otherwise than voluntarily, so completely destroyed that his actiow


the question, but in 1904 stated the right and wrong test "has beencriticized as not entirely accurate." 187 In New Hampshire there isno special test, the Supreme Court having held that in every case wheremental disease is set up as a defense the question is whether the de-fendant had the requisite mens rea.18 A summary of the law in eachstate is set forth in a footnote.'8 9

The Federal Courts approve irresistible impulse as a defenseand it is included in the new MANUAL FOR COURTS MARTIAL.

1 9 1

are not subject to it, but are beyond his control." Gourley, J. in U.S. ex rel.Herge v. Com. of Pa., 89 F. Supp. 636, 640 (1950) and U.S. ex rel. Wing v. Com.of Pa. et aL, 90 F. Supp. 208, 211 (1950). (Emphasis added).

186. On October 11, 1892, the Supreme Court in an opinion by Brannon, J. ex-pressly and emphatically repudiated the irresistible impulse test. Brannon, J. statedthe following: "For myself I can not see how a person who rationally comprehendsthe nature and quality of an act, and knows that it is wrong and criminal, can actthrough irresistible innocent impulse." State v. Harrison, 36 W. Va. 729, 751, 15S.E. 982, 990 (1892).

On the same day that State v. Harrison was decided, Holt, J. speaking for theCourt, stated the following: "If there were any evidence showing or tending to showan irresistible insane impulse, as distinguished from the ordinary case of an impulsenot resisted, that the killing was the direct result of the destruction by insanity ofthe power of self-control, then the counsel for the accused should have called on thecourt for an instruction directed specially to that point." State v. Maier, 36 W. Va.757, 771, 15 S.E. 991, 996 (1892).

In 1911 the Supreme Court stated: "There is no evidence that the frenzy or un-governable passion, the irresistible impulse of the prisoner, on the night of the homi-cide, on hearing the confessions of his wife, was the result of mental disease, asdistinguished from weakness or passion." Miller, J. in State v. Cook, 69 W. Va. 717,722, 72 S.E. 1025, 1027 (1911). This statement was quoted with approval by Litz,J. in State v. Evans, 94 W. Va. 47, 55, 117 S.E, 885, 887 (1923).

187. State v. Quigley, 26 R.I. 263, 270, 58 Atl. 905, 907 (1904).188. State v. Pike, 49 N.H. 399 (1869), State v. Jones, 50 N.H. 369 (1871).189. Summary: Irresistible impulse is approved in Alabama, Arkansas, Colorado,

Connecticut, Delaware, Illinois, Indiana, Kentucky, Massichusetts, Michigan, Mon-tana, Utah, Vermont, Virginia, Wyoming (15). It is disapproved in Arizona, Cali-fornia, Florida, Georgia, Iowa, Kansas, Maine, Maryland, Minnesota, Mississippi,Missouri, Nebraska, New Jersey, New York, North Carolina, Oklahoma, Oregon,South Carolina, Tennessee, Texas, Washington and Wisconsin (22). The decisionsare conflicting in New Mexico, Ohio, Pennsylvania and West Virginia (4). The"right and wrong" test has been approved, but the question of irresistible impulseas a defense has not been decided, in Idaho, Nevada, North Dakota, Rhode Islandand South Dakota (5). In Louisiana there is doubt, but a recent statute laying downthe "right and wrong" test will probably be interpreted as excluding irresistible im-pulse. New Hampshire rejects all the "symptom tests" and applies simply the re-quirement of inens rea.

The courts which hold that irresistible impulse, resulting from mental disease, isa defense differentiate this condition from an emotional impulse produced by anger,hatred or jealousy. See Rowe v. State, 243 Ala. 618, 11 So.2d 749 (1943) ; Bell v.State, 120 Ark. 530, 180 S.W. 186 (1915); Ryan v. State, 60 Colo. 425, 153 Pac.756 (1915); Plake v. State, 121 Ind. 433, 23 N.E. 273 (1889); Flanders v. State,24 Wyo. 81, 156 Pac. 1121 (1916).

190. Instructions laying down the rule of irresistible impulse were approved bythe Supreme Court in Davis v. United States, 165 U.S. 373 (1897) ; Matheson v.United States, 227 U.S. 540 (1913) ; Fisher v. United States, 328 U.S. 463 (1946).The Court of Appeals for the District of Columbia reversed a conviction becausethe trial judge refused to instruct the jury that irresistible impulse was a defense.Smith v. United States, 36 F.2d 548 (D.C. Cir. 1929).

191. MANUAL FOR COURTS-MARTIAL 200 (1951). See discussion of this pro-vision in LEGAL AND LEGiSLAT vE BASIS OF MANUAL FOR COURTS-MARTIAL 166, 167(1951). See also pamphlet, PSYCHIATRY IN MILaIRY LAw, ARMY TECHNICALMANUAL 8-240 AND AIR FoaRc MANUAL 160-42 (1950).

1952]


VII

It is a fundamental principle of the criminal law that volition is arequisite element of every crime.192 The chief reason for this require-ment is that without volition there can be no act. 93 It is also statedthat criminal intent requires volition.' 4 Since an impulse, if irresistible,

. 192. Blackstone stated "the concurrence of the will, when it has its choice eitherto do or to avoid the fact in question, being the only thing that renders human actionseither praiseworthy or culpable." 4 Comm. 20 (1769).

"The offender must have been "able to help" his conduct." CLARK, ELEMENTSOF CRIMINAL LIABILITY 109 (1880).

"The reason for requiring an act is, that an act implies a choice, and that it is feltto be impolitic and unjust to make a man answerable for harm, unless he might havechosen otherwise." HOLMES, COMMOe LAW 54 (1881).

"For legal purposes it is enough to say that no involuntary action, whateverits effects may produce, amounts to a crime by the law of England." 2 STEPHEN,HISTORY OF THE CRIMINAL LAW OF ENGLAND 100 (1883).

193. "Acts, then, in the eye of the law are such muscular motions as are precededby the peculiar phenomenon entitled will." AMos, THE SCIENCE OF LAW 101 (1874).

"External acts are such motions of the body as are consequent upon deternina-tions of the will." 1 AUSTIN, JURISPRUDENCE 376 (1879).

"An act or action is a name given to an event in so far as it comes to be con-sidered as having had the human will for the immediate cause of it." 1 BENTHAM,JUDICIAL EVIDENCE 48 (1827).

"That is a man's act which he wills to do, exercising a choice between acting andforbearing, and the strongest moral compulsion still leaves freedom of such choice."CLERK & LiNDSELL, TORTS 7 (2d ed. 1896).

"Acts are movements of the will." HOLLAND, JURISPRUDENCE 72 (1880)."Without the function of the will, there can be no physical action." Stone, C.J.

in Parsons v. State, 81 Ala. 577, 610 (1886)."An act is always a voluntary muscular contraction and nothing else." HoLMES,

COMMON LAW 91 (1881)."An act is the bodily movement which follows immediately upon a volition."

MARKBY, ELEMENTS OF LAW § 215 (4th ed. 1889)."We mean by it [act] any event which is subject to the control of the human will."

SALMOND, JURISPRUDENCE 381 (7th ed. 1924).194. "Will is as necessary an element of intent as are reason and judgment."

Simmons, C.J. in Flanagan v. State, 103 Ga. 619, 626, 30 S.E. 550, 552 (1898)."Accountability for crime, pre-supposes a criininal intent and that requires a

power of reasoning upon the character and consequences of the act; a will subjectto control. For this reason it is, that a homicide, committed under the influence ofuncontrollable passion is not murder." Nisbet, J. in Roberts v. State, 3 Ga. 310, 328(1847).

See also Turner, Mental Element in Crimes at Common Law in THE MODERNAPPROACH TO CRIMINAL LAw 195, 203 (Radzinowicz and Turner ed. 1945).

Lack of volition due to an external force is well recognized as a defense. Notethe following:

"If there be an actual forcing of a man, as if A by force take the arm of B andthe weapon in his hand, and therewith stabs C, whereof he dies, this is murder inA, but B is not guilty." 1 HALE, P.C. 434 (1736).

"A man may throw himself into a river under such circumstances as renderit not a voluntary act; by reason of force, applied either to the body or the mind."Erskine, J. to jury in Reg. v. Pitts, C. & M. 284, 285 (1842). Cited with approvalin Patterson v. State, 181 Ga. 698, 705, 184 S.E. 309, 313 (1936) ; Whaley v. State,157 Fla. 593, 595, 26 So.2d 656, 658 (1946); State v. Myers, 7 N.J. 465, 475, 81A.2d 710, 715 (1951). See discussion of State v. Myers in Knowlton, Criminal Lawand Procedure, 6 RUTGERS L. REv. 112, 117-120 (1951).


necessarily negatives volition, it follows logically that irresistible im-pulse should constitute a defense. This being so, it becomes importantto consider what reasons have been given by judges and writers who

,take a contrary view.The principal reasons advanced for not recognizing irresistible

impulse, even though the product of mental disease, are the following:1. An impulse to do harm by one who knows the difference betweenright and wrong can not be irresistible. 9 ' 2. Difficulty of proof.'3. Impracticality of application. 9 7 4. Danger to society, since re-

195. "The possibility of the existence of such a mental condition is too doubt-ful." Chalmers, J. in Cunningham v. State, 56 Miss. 269, 279 (1879).

"For myself I can not see how a person who rationally comprehends the natureand quality of an act, and knows that it is wrong and criminal, can act through ir-resistible innocent impulse." Brannon, J. in State v. Harrison, 36 W. Va. 729, 751,15 S.E. 982, 980 (1892). Quoted with approval by Skeel, J. in State v. Cumber-worth, 69 Ohio App. 239, 247, 43 N.E.2d 510, 513 (1942) and by Jeffers, J. in Statev. Maish, 29 Wash.2d 52, 60, 185 P.2d 486, 490 (1947).

"That the person pretends he is impelled by an irresistible and overwhelmingimpulse to commit the act will not make a defense." Westbrook, J. to jury in Peoplev. Waltz, 50 How. Pr. 204, 214 (N.Y. 1874).

"Such irresistible impulse to commit an act which he knows is wrong or unlawful(if it ever exists) does not constitute the insanity which is a legal defense."McKinstry, J. in People v. Hoin, 62 Cal. 120, 121 (1882).

"But if an influence be so powerful as to be termed irresistible, so much the morereason is there why we should not withdraw any of the safeguards tending to counter-act it. There are three powerful restraints existing, all tending to the assistance ofthe person who is suffering under such influence-the restraint of religion, the re-straint of conscience, and the restraint of law. But if the influence itself be held alegal excuse, rendering the crime dispunishable, you at once withdraw a most power-ful restraint-that forbidding and punishing its perpetration." Bramwell, B. in Reg.v. Haynes, 1 F. & F. 666, 667 (1859).

"We do not know that the impulse was irresistible, but only that it was not re-sisted. Whether irresistible or not must depend upon the relative force of the impulseand the restraining force, and it has been well said that to grant immunity frompunishment to one who retains sufficient intelligence to understand the consequencesto him of a violation of the law, may be to make an impulse irresistible, which beforewas not." Temple, J. in People v. Hubert, 119 Cal. 216, 223, 51 Pac. 329, 331 (1897).

The same idea was cynically expressed by a Canadian judge as follows: "If youcan not resist an impulse in any other way, we will hang a rope in front of youreyes, and perhaps that will help." Riddell, J. in The King v. Creighton, 14 Can. Cr.Cas. 349, 350 (1908).

196. "It seems to us, however, that in the view suggested the difficulty wouldbe great, if not insuperable, of establishing by satisfactory proof* whether an impulsewas or was not 'uncontrollable."' McGowan, J. in State v. Bundy, 24 S.C. 439, 445(1886). To the same effect see Davis, J., in People v. Coleman, 1 N.Y. Crim. R. 1,

3 (1881) and McIver, J. in State v. Levelle, 34 S.C. 120, 131, 13 S.E. 319, 321(1890).

"In truth, there are no means by which to judicially determine whether a criminalimpulse, which has been yielded to, is uncontrollable or not, unless by accepting thestatement of the criminal upon that subject." Note, Insanity as a Defeime-IrresistibleImpulse, 63 Am. ST. REP. 79, 100 (1898).

To the same effect see OPPENHEIMER, THE CRIMINAL REsPONsrBrLrrY OF LUNA-Tics 193 (1909) and GOODHART, ESSAYS IN JURISPRUDENCE AND THE CoMMoN LAW47 (1931).

197. The possibility of the existence of such a mental condition is . . . too in-capable of a practical solution to afford a safe basis of legal adjudication.' Chalmers,J. in Cunningham v. State, 56 Miss. 269, 279 (1879).

1952]


fusal to recognize defense of irresistible impulse will act as a deterrentto the commission of crime. 98 5. There is no need for allowing thedefense, since after conviction clemency can be accorded persons whoas a result of mental disease were irresistibly impelled to commit theharm in question.'99

When a judge states that a person who knows right from wrongcan not be irresistibly impelled to do wrong, he is departing from hisjudicial function and is assuming the role of an expert medical wit-ness,"°' for which he is in no way qualified. That an impulse, re-

"While the court fully appreciates the force of the reasoning of the courts accept-ing the doctrine of irresistible impulse and the logic of the position from the stand-point of the psychiatrist, nevertheless there are many grave objections to this doc-trine in its practical application . . ." Green, C.J. in Davis v. State, 161 Tenn.23, 33, 28 S.W.2d 993, 996 (1930).

"The vagueness and uncertainty of the inquiry which would be opened and themanifest danger of introducing the limitation claimed into the rule of responsibilityin cases of crime, may well cause courts to pause before assenting to it." Andrews,J. in Flanagan v. People, 52 N.Y. 467, 470 (1873).

198. "The medical man called for the defence defined homicidal mania to be apropensity to kill, and described moral insanity as a state of mind, under which a man,perfectly aware that it was wrong to do so, killed another under an uncontrollableimpulse. This would appear to be a most dangerous doctrine, and fatal to the interestsof society and security of life." Wightman, J. to jury in Reg. v. Burton, 3 F. & F.772, 780 (1863).

"If juries were to allow it as a general motive, operating in cases of this char-acter, its recognition would destroy social order, as well as personal safety." Stone,J. in Boswell v. State, 63 Ala. 307, 321 (1879).

"Indeed it would seem dangerous to society to say that a man who knows whatis right and wrong may nevertheless, for any reason, do what he knows to be wrongwithout any legal responsibility therefor." Valentine, J. in State v. Nixon, 32 Kan.205, 212, 4 Pac. 159, 163 (1884). To same effect see Andrews J. in Flanagan v.People, 52 N.Y. 467, 470 (1873) ; Sherwood, J. in State v. Pagels, 92 Mo. 300, 317,4 S.W. 931, 937 (1887).

"It is the fantastic theory of uncontrollable impulse which, if it were to becomepart of our criminal law, would be merely subversive." Hewart, L.C.J. in Appealof Kopsch, 19 Cr. App. R. 50, 51 (1925).

199. "There are doubtless some cases, like that of Hadfield's Case, 27 How. St.Tr. 1281, in which the fear of punishment does not restrain, but where the rule worksmanifest injustice the unfortunate defendant is in sotie way saved from punishment."Temple, J. in People v. Hubert, 119 Cal. 216, 224, 51 Pac. 329, 331 (1897).

"Let your Lordships dismiss from your minds the fear that anybody who hasacted under an uncontrollable impulse which he can not resist when he commits thecrime, is likely to be hanged. In the Home Office every case is considered, the reportof the Judge after conviction has taken place in a case of this kind is studied, and insuch a case the extreme penalty would never be inflicted." Lord Chancellor Haldanein debate on Lord Darling's bill. 57 H.L. DEB. 472 (5th ser. 1924).

"Where there is a compelling impulse of that kind it is always taken into accounteither by the Judge at the trial or, in the event of conviction, by the Secretary ofState when he comes to consider the sentence." Viscount Cave in debate on LordDarling's bill. 57 H.L. DEB. 476 (5th ser. 1924). To same effect see Lord Sumner,57 H.L. DEB. 458; (5th ser. 1924) and Lord Chief Justice Hewart, 57 H.L. DEn.469 (5th ser. 1934).

200. The Supreme Court of the United States reversed a conviction because thetrial judge expressed a medical opinion for which there was no evidence. Querciav. U.S. 289 U.S. 466 (1933).

"It was, for a long time, supposed that men, however insane, if they knew anact to be wrong, could refrain from doing it. But whether that supposition is cor-


sulting from mental disease, may be irresistible is supported by a massof medical opinion. 01 As on many medical questions there is a con-trary opinion, but it is advanced by relatively few members of theprofession.

202

Dr. Philip Q. Roche of Philadelphia, Chairman of the Committeeon Forensic Psychiatry of the Group for the Advancement of Psy-chiatry, recently put to the members of this Group the following ques-tion: "Are there cases where a person, suffering from mental derange-ment, knows that it is wrong to inflict bodily harm (killing, maiming,ravishing) upon another person, but owing to the mental derangementis incapable of controlling (resisting) the impulse to commit suchbodily harm ?" One hundred and two answers were received, of whichninety-three were "yes" and nine were "no." 203 Six members of theGroup expressed the opinion that no definite answer to the questioncould be given.

rect or not, is a pure question of fact. The supposition is a supposition of fact,--in other words, a medical supposition,-in other words, a medical theory. Whetherit originated in the medical or any other profession, or in the general notions of man-kind, is immaterial. It is as medical in its nature, as the opposite theory." Doe J.in State v. Pike, 49 N.H. 399, 437 (1870).

201. KIRCHoFF, HANDBOOK OF INSANITY 93 (1893); 1 CLEVENGER, MEDICAL JURIS-PRUDENCE OF INSANITY 172 (1898); LEWIS, A TEXT-BOOK OF MENTAL DISEASE 207(1899); MAUDSLEY, RESPONSIBILITY IN MENTAL DISEASE 143 (Am. ed. 1899);BERKELEy, MENTAL DISEASE 120 (1900); BROWER-BANNISTER, PRACTICAL MANUALOF INSANITY 396 (1902); DEFENDORF, CLINICAL PSYCHIATRY 389 (1902); CRAIG,PSYCHoLoGIcAL MEDICINE 71 (2d ed. 1912) ; CLOUSTON, MENTAL DISEASES 338 (6thed. 1904); BRUCE, STUDIES IN CLINICAL PSYCHIATRY 27 (1906); BIANCHI, TEXT-BOOK OF PSYCHIATRY 633, 634 (1906) ; JACOBY, THE UNSOUND MIND AND THE LAW13 (1918); GOODWIN, THE LUNATIC AND THE LAW 255 (1924); SINGER AND KROHN,INSANITY AND LAW 161, 212 (1924); STODDART, MIND AND ITS DISORDEaS 257, 258(5th ed. 1926) ; EAST, FORENSIC PSYCHIATRY 358 (1927) ; Overholser, The Role ofPsychiatry in the Administration of Criminal Austice, 93 J. Am. MED. Ass'N 830(1929); WHITE, OUTLINES OF PSYCHIATRY 98 (12th ed. 1929) ; SADLER, THEORY ANDPRACTICE OF PSYCHIATRY 172 (1936); TREDGOLD, MENTAL DEFICIENCY 346 (6th ed.1937); NoYES, MODERN CLINICAL PSYCHIATRY 88 (3d ed. 194&). See also3 WITTHAUS AND BECKER, MEDICAL JURISPRUDENCE 247 (2d ed. 1909).

"The English writers use the term insanity with irresistible impulse, the Frenchspeak of obsessions with irresistible tendencies, while the Germans have largely em-ployed the expression 'Zwangneurose,' compulsion neurosis." DERCU, A CLINICALMANUAL OF MENTAL DISEASES 190 (2d ed. 1917).

202. See ZLmBooRG, MIND, MEDICINE AND MAN 274 (1943); HAMBLIN SMITH,.PSYCHOLOGY OF THE CRIMINAL 179 (2d ed. 1933) ; Henderson, Psychiatry and theCriminal Law, 4 PSYCHIAT. Q. 114 (1930); cited by HALL, PRINCIPLES OF THECRIMINAL LAW 515, 507, 518 (1947).

Irresistible impulses are rare. SINGER AND KROHN, INSANITY AND LAW 161(1924) ; ROSANOFF, MANUAL OF PSYCHIATRY 322 (1920) ; Gordon, Morbid Implises,12 J. CRrM. L. AND CRIMINOLOGY 604 (1922) ; Meagher, Crime and Insanity, 14 J.CRIm. L. AND CRIMINOLOGY 46, 55 (1923) cited by Waite, Irresistible Impulse andCriminal Liability 23 MIcH. L. REv. 443, 455 (1925). To the same effect see Whit-man, Capital Punishment and Irresistible Impldse as a Defense, 5 No=x DAME LAW.188, 195 n. (1930).

203. Professor Jerome Hall, who has made an extensive study of the relation ofmental derangement to criminal responsibility, states that "The essential, specific con-sequence, in terms of the instant problem, is that diseased volition does not existapart from diseased intelligence." HALL, GENERAL PRINCIPLES OF CRIMINAL LAW

1952]


In connection with the opinion that an impulse resulting frommedical disease may be irresistible, it is recognized that in such casethe intellectual powers will also be affected, for the idea that a medicaldisease may affect but a single function of the mind has been longabandoned.V °' However, this intellectual impairment may, and fre-quently does, fall short of an incapacity to distinguish between rightand wrong.

The objection that irresistible impulse is difficult to prove is notan adequate reason for rejecting the defense. A similar objection maybe made to other types of mental disease. This was clearly recognizedby the Supreme Court of Utah in an opinion by Hansen, J. who statedthat "Insanity in all its forms is frequently difficult to determine withcertainty, and yet courts all recognize that, if an accused does not knowright from wrong and does not know the nature and quality of theact charged he should not be punished." 2°5

Some physical diseases are difficult to prove,20 6 yet it is not likelythat a court would refuse to receive evidence, otherwise admissible,of the existence of any of these diseases merely because of the difficultyof proof.

524 (1947). He supports the theory of the "integration of the self" according towhich, as he states, "any interaction with the environment is integrated in the sensethat the various functions of the personality coalesce and act as a unit." Id. at 521.Professor Hall's view is discussed with approval in CLECKLEY, THE MASK OFSANITY 500, 501 (2d ed. 1950).

With regard to the question propounded by Dr. Roche, which has been setforth in the text, Professor Hall states "The point is that to really know that it iswrong to inflict a serious injury on another person implies a sensitivity and an emo-tional tone permeating the cognition." Letter to the writer dated March 8, 1952.With this qualification Professor Hall expresses the opinion "that there can be noirresistible impulse to inflict a serious harm by a person who really knows that it iswrong to do so." Ibid.

204. "The nature of impulsive conduct generally brings out the point that ir-resistible impulse can not be regarded as an isolated phenomenon apart from theemotional and cognitive processes of mind." GLUECK, MENTAL DISORDER AND THECRIMINAL LAW 310 (1925).

"Although the 'irresistible impulse' doctrine has given rise to much criticism,it seems fairer and more in accordance with psychologic teaching to consider theindividual as a unit with cognitive, conative and affective aspects, rather than as a'thinking machine' governed entirely by ethical or legal considerations of 'right andwrong.'" Overholser, The Role of Psychiatry in the Administration of Justice, 93J. Am. MED. Ass'N 830 (1929). Permission to include this quotation was granted bythe author.

205. State v. Green, 78 Utah 580, 600, 6 P.2d 177, 185 (1931)."Is it more easy to ascertain a man's abstract knowledge of right and wrong,

lawful and unlawful, than the exact amount of self-restraint which he possesses?"GuY, PRINCIPEIS OF FORENSIC MEDICINE 338 (1845).

"There is no greater intellectual difficulty in understanding and applying the ir-resistible impulse test than there is in applying the tests under the McNaghtenRules." Barnes, A Century of the McNaghten Rides, 8 CAmB. L.J. 300, 312 (1944).

206. For example, multiple sclerosis, chronic gastritis, coronary disease andtrachoma.


The objection that irresistible impulse would be difficult of ap-plication was answered by Somerville, J. in Parsons v. State, when hestated the following:

"It is no satisfactory objection to say that the rule aboveannounced by us is of difficult application. The rule in Mc-Naghten's Case is equally obnoxious to a like criticism. Thedifficulty does not lie in the rule, but is inherent in the subjectof insanity itself." 207

The contention that refusal to allow the defense is a crime de-terrent is not supported by any factual proof. It may well be doubtedwhether the conviction of a person actuated by an insane impulse willdeter others from the commission of crime, particularly if they aresimilarly afflicted. A realistic answer to the contention was given byan editor of the Iowa Law Review as follows: "There are no statisticsto prove that the ratio of crime in a state applying the irresistible testis any greater than that of a state not using such a test." 208

The argument by a judge, who is opposed to allowing irresistibleimpulse as a defense at the trial, that after conviction effect may begiven to such a condition by the executive authority as an act ofclemency seems to indicate an evasion of judicial responsibility.2 9 If

medical experts are prepared to testify that a person at the time theharm was committed was suffering from an irresistible impulse, theresult of mental disease, this testimony, which is relevant to the issueof guilt, should be presented at the trial and not after conviction atan investigation conducted with a view to clemency.

It having been shown that irresistible impulse, resulting frommental derangement, is generally recognized by psychiatrists, and thataccording to a fundamental principle of the criminal law it should con-stitute a defense, the question then arises as to how the rule of criminalresponsibility should be stated so as to include this defense. Should"irresistible impulse" simply be added as a test to the "right and wrongtest," so that it would be stated there is no responsibility if, at the timeof committing the harm in question, the defendant was suffering frommental derangement as a result of which he (1) was unable to dis-

207. 8 Ala. 577, 593, 8 So. 854, 864 (1887).208. 32 IOWA L. REv. 714, 718 (1947). That the defense of irresistible impulse

"constitutes a threat to the security of society does not stand up under the light of ex-perience." Hoedemaker, "Irresistible Impulse" as a Defense in Crimiwl Law, 23WASH. L. REv. 1, 7 (1948).

209. See WEATHERLY, A PLEA FOR THE INSANE 156 (1918) ; CARSWELL, TRIALOF RONALD TRUE 40 (1925) ; HENDERSON AND GILLESPiE, TExT-BooK OF PSYcHIATRY587 (4th ed. 1937).

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tinguish between right and wrong or (2) was irresistibly impelled tocommit the harm? No; for a legal rule should not be stated in termsof the symptoms of mental disease. 1° A great defect of the M'NaghtenRules is that they crystallized existing theories of mental disease.A rule of law should be based on a legal principle, and psychiatrictestimony like other evidence should be considered to the extent thatit is relevant to the rule. A test, based upon a sound legal principleand capable of being applied to all types of mental disease, was recom-mended in 1913 by a committee of lawyers and physicians. 12 Therecommended test is as follows: "No person suffering from mentaldisease shall hereafter be convicted of any criminal charge, when atthe time of the act or omission alleged against him, he did not have,by reason of such mental disease, the particular state of mind that mustaccompany such act or omission in order to constitute the crimecharged." 215

210. "Thence has arisen so many ridiculous and untenable opinions, unsound andillogical propositions, unsafe and dangerous precedents. A regards motive as sufficienttest; B requires knowledge of morality or immorality of act; C demands a compre-hension of its relations to the law; D argues from the presence or absence of self-restraint; E considers the existence of delusion essential; F associates delusion withact; G rejects the mental unless corroborated by the physical condition; H com-mingles insanity with crime; and ALL contribute somewhat to involve the questionin almost inextricable perplexity. We might extend this list: to do so would bemerely to repeat what we have already propounded." WILI.AMS, UNSOUNDNESS OFMIND 205 (1856).

211. "The knowledge test in all its forms, and the delusion test, are medicaltheories introduced in immature stages of science in the dim light of earlier times,and subsequently, upon more extensive observations and more critical examinations,repudiated by the medical profession." Doe, J. in State v. Pike, 49 N.H. 399, 437(1870). See Keedy, A Problem of First Degree Murder: Fishter v. United States,99 U. OF PA. L. REv. 267, 290 (1950).

212. Committee on Insanity and Criminal Responsibility of the American Insti-tute of Criminal Law and Criminology.

The members of the Committee were as follows:Albert C. Barnes, Judge of the Superior Court, Chicago.Archibald Church, Professor of Mental Diseases and Medical Jurisprudence,

Northwestern University.Walter Wheeler Cook, Professor of Law, University of Chicago.William S. Forrest, Lawyer, Chicago.Adolf Meyer, Professor of Psychiatry, Johns Hopkins University.William E. Mikell, Professor of Law, University of Pennsylvania.Harold N. Moyer, Physician, Chicago.Morton Prince, Professor of Nervous Diseases, Tufts College Medical School.William A. White, Superintendent, Government Hospital for the Insane,

Washington, D. C.Edwin R. Keedy, Chairman, Professor of Law, Northwestern University.

213. 3 J. CRim. L. AND CRIMINOLOGY 719, 720 (1913).The Medico-Legal Bar Association Committee of the Pennsylvania Psychiatric

Society approved the proposed bill on March 2, 1952 and stated the following reasonsfor such approval: "(1) That mental disorder not be regarded as a constant quantity,(2) that the Bill embodies no medical or psychological theories, (3) that the Bill doesnot limit the defense to any form or symptoms of mental disease, (4) that it elimi-nates any legal definition of insanity, does not employ the word 'insanity', nor attemptto state what constitues mental disease, (5) that the Bill clearly separates the legaland medical functions of the trial, (6) that the Bill limits the testimony of the medical


Under this test, if there was evidence of irresistible impulse, thetrial judge would instruct the jury as follows:

."A mental requirement of every crime is volition, whichmeans that a person is able to exercise a choice either to actor not to act. In this case there was medical testimony that thedefendant was suffering from mental disease and as a consequencewas irresistibly impelled to commit the harm with which he wascharged. If you find from such testimony that the defendant wasso impelled, then the necessary volition was lacking and the de-fendant should be acquitted."

Criminal responsibility is a legal question and the rules for de-termining such responsibility should be based on legal principles.Mental disease, on the other hand, is a medical problem and when setup as a defense to a criminal charge should be established by the testi-mony of qualified physicians. It is then the function of the jury toapply the rule of law, as laid down by the trial judge, to the medicaltestimony and arrive at a verdict accordingly.

expert to the opinion regarding the mental condition of the defendant at the time ofthe alleged offense; that the judge have the task of describing to the jury the mentalelement required in the crime charged, and finally (7) that the bill provides that thefunction of the jury bd to determine whether the defendant, as a result of the mentalcondition determined by the medical expert, has a particular state of mind as de-lineated by the judge."

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Irresistible Impulse as a Defense in the Criminal Law

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